Would Judges Find MSCD Useful?

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.

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.

5 thoughts on “Would Judges Find MSCD Useful?”

  1. Ken:

    I’m not sure that what you’re saying makes sense:

    “MSCD can serve to demonstrate that ostensibly straightforward language is in fact unclear and that allegedly unclear language is in fact straightforward.”

    If the allegedly unclear language is straightforward, why would the MSCD be consulted in the first place?

    You know that I like the MSCD.  I think it’s useful.  I even agree with the bulk of your supporting logic.  But what it sounds like you’re suggesting here is that the MSCD serve as model rules for drafting.

    Frankly, it scares me to think that, in the event one of my contracts has to be interpreted, that the courts would turn to ANY outside “guide” to assist in the interpretation of what I intended to write (heck, I don’t even like the applicability of the UCC in many instances).

    • Jeff: Regarding the “allegedly unclear language is straightforward” bit, sometimes a contract party, or a judge, thinks that something is ambiguous when in fact it isn’t.

      More generally, there’s oodles of caselaw to show that routinely, contract language that the parties thought was clear turns out to be sufficiently unclear that they end up fighting about it. Determining whether a given provision is unclear, and what it might mean, isn’t a function of arbitrary rules made up by me or anyone else; instead, it’s a function of how English works. And MSCD aims to explicate that confusion and how, using standard English, you can avoid it.

      If your contracts are don’t raise any uncertainty as to meaning, you’ve got nothing to worry about. But if anything is unclear, I think it makes sense that judges might want to consult something that helps explain the nature of that uncertainty. But that probably wouldn’t spare a court having to get into the messy business of trying to figure out what the intent of the parties was.

      So I don’t think I’m getting too carried away with my notions regarding the function of MSCD. I hope I’ve been able to set you at ease!


      • Actually, what I hear you suggesting is that the MSCD be used as a translation device: you said “x”, so you must have meant “xray”, not “xylophone”. But doesn’t that reduce your book to simply a magic words spellbook? I would think you’d be against that.


        Because if the only way to have language interpreted in a certain manner was to say it how the MSCD suggested it be said, then it is just a list of magic words. :)

        • Jeff: That’s exactly NOT what I’m suggesting.

          For purposes of understanding a dispute, what I aim to do is help anyone who’s interested determine what, as a matter of standard English, the language at issue means. There’s nothing arbitrary about it, and I’m not necessarily able to resolve the confusion.

          Consider, for example, the “case of the million-dollar comma,” as recounted in this article. The commission hearing the dispute decided that the contract language at issue wasn’t ambiguous. The affidavit I prepared as expert witness stated that in terms of how people actually write English, that language was ambiguous. I don’t see any magic-wordery in that.


          • Well, I’m glad to hear that that is not what you’re suggesting.

            But I still think that you can’t use it how you suggest in the “comma” example without it also being used in the “xray vs xylophone” example.

            In fact, this is the reason why I didn’t include sample/model language in my book.  I couldn’t find a way to ensure that people would only use it as an example but wouldn’t simply copy it wholesale into their next agreement and assume they had a perfectly applicable clause for x, y or z.

            So I guess I’m advocating caution.

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