You Know Ambiguity, Now Meet the Reader Miscue

You all know about ambiguity; I’ve done untold dozens of posts about ambiguity; go here to see a bunch of them. Ambiguity is what gives rise to alternative possible meanings.

A reader miscue is different. It’s what happens when the reader starts going down the road to ambiguity, realizes that something is amiss, and backtracks.

MSCD contains a few scattered examples of reader miscues. And occasionally I’ve mentioned them on this blog, for example at the bottom of this 2015 post. But I encountered one the other day. It involves my form of notices provision, which is available to anyone who checks out my short video Ken’s Hot Take on Notices Provisions. Here’s the part at issue:

if it is delivered by email, when the intended recipient acknowledges by notice in accordance with this section 12 (but without need for further acknowledgement) having received that message, with a read receipt or an automatic reply not constituting acknowledgment of a message for purposes of this section 12; and

A reader contacted me to say that initially he read it as saying when the intended recipient acknowledges (A) by notice in accordance with this section 1 … , (B) with a read receipt …

That possibility hadn’t crossed my mind, but I see the possible miscue, so I revised that enumerated clause as follows:

if it is delivered by email, when the intended recipient acknowledges by notice in accordance with this section 12 (but without need for further acknowledgement) having received that message, except that a read receipt or an automatic reply will not constitute acknowledgment of a message for purposes of this section 12; and

I’ve eliminated the possible miscue, but it’s still a little awkward. I’d be happy to receive suggestions for improving it.

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.