Regarding Chancellor Strine’s discussion of MSCD (see this post), I’ve already said that I concur with the chancellor’s statement that “One can even share and in fact applaud Adams’ encouragement of clearer forms of contract drafting but find it not useful in interpreting a contract written in the form Adams wishes to abandon.”
But that brought to mind a broader issue: Would judges find MSCD of any use? In other words, just because my guidelines might not be of use in interpreting a given contract, does that mean that they would be helpful in interpreting no contract?
If MSCD recommends one structure and the contract at issue in a given dispute uses a different structure, then MSCD might well be of no use in helping the court determining what the parties had in mind in using that different structure. That was the case in the dispute addressed in the chancellor’s opinion.
But depending on the source of confusion, MSCD could be useful. That’s because MSCD can serve to demonstrate that ostensibly straightforward language is in fact unclear and that allegedly unclear language is in fact straightforward. And MSCD can also be used to establish just what is confusing about language that you know is unclear.
So a judge might find useful what MSCD has to say about a host of words and phrases—represents and warrants, indemnify and hold harmless, and so on. And a judge might be surprised at the many and varied sources of ambiguity in contract language, most not discussed elsewhere at any length.