When You Write a Reference Work, You Don’t Want to Screw Up

I recently saw the following in a book:

The words “exclusion” and “disclaimer” are sometimes used interchangeably in warranty provisions, but an important legal distinction exists between them. The word “exclusion” or “excluded” used with respect to implied warranties means that those warranties implied by law are denied entry or admission into the agreement. In other words, if implied warranties are “excluded,” it means they never were part of the contract. By contrast, if the implied warranties are “disclaimed,” those implied warranties were initially part of the contract but have been repudiated or rejected for some reason.

This analysis, with its distinction between “denied entry” and “repudiated,” seems very odd. (You can see what I have to say about disclaim in this 2011 post.)

I plucked this example at random simply because I’ve been pondering the responsibility that comes with writing a reference work. If you write something that’s more of a think piece, you can go off the rails periodically without inflicting too much damage on the reader or your reputation.

But a reference work will be consulted by people who are looking for guidance and who don’t have the time, inclination, or expertise to critically evaluate everything you say. Sure, plenty of readers consult a reference work and cherry-pick those parts that they think make sense. But many will rely on the author to be the expert.

So mistakes in a reference work should be particularly galling for the author. They are for this author.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.