In a given context, a writer should weigh the benefits of vagueness – flexibility – against cost – uncertainty. Another form of contractual ambiguity is lexical ambiguity, which occurs when there is insufficient context to determine the meaning of a word that has more than one meaning. To give a well-known example: Frigaliment Imports Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960), concerned the question of whether an order for “chickens” was for young chickens or chickens of all ages that met the weight and weight specifications. quality.
A more recent example of a case with lexical ambiguity is Provident Bank v. Tenn. Farmer`s courage. Ins. Co., 2007 U.S. App. LEXIS 10671 (6th Cir. May 2, 2007), in which the court stated that it was unclear whether the term “foreclosure” referred to a foreclosure proceeding or a foreclosure sale. And see MSCD 8.107 for alternative meanings of year. Imprecision is unique among sources of uncertainty because it is not inherently harmful. Authors regularly use vagueness – the usual vague words and phrases in contracts include reasonable effort, significant and significant adverse changes, rapid and rapid, substantial, satisfactory, and unreasonable.
The authors invoke vagueness when future circumstances are so unclear that it is impossible to set precise standards. For example, if a provision requiring reimbursement of attorneys` fees and expenses were likely to cover a wide range of disputes, it would probably not make sense to limit fees and expenses to a certain amount. Instead, an author could take advantage of the vagueness by referring the provision to reimbursement of reasonable attorneys` fees and costs. A conflict occurs when individual provisions of a particular agreement contradict each other. The courts also characterize conflicts as ambiguous. For example, in United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 813 (Del. Ch. 2007), a high-profile case of a $6.6 billion acquisition that was never completed, the Court noted how a direct conflict between two remedies provisions made the agreement ambiguous. (See this article.) Again, it may be preferable to use different terminology to distinguish between different sources of uncertainty. Another source of uncertainty is the indeterminacy that occurs whenever a concept provides for the possibility of borderline cases.
For example, “tall” is vague – you can`t tell exactly how tall someone needs to be to be considered tall. As a result, two people might agree that Tom is small and Dick is tall, but disagree that Harry – who is taller than Tom but shorter than Dick – is tall. And size is relative — your idea of what “big” means would likely vary depending on whether you`re considering a group of female gymnasts, a group of professional basketball players, or a mixed population. Some proponents of “creative ambiguity” might think that a writer intentionally includes an ambiguous clause in a contract to allow the client to invoke the hidden alternative meaning after signing if it would bring a benefit. But such gaming skills seem to be at odds with a successful contractual relationship and could violate ethical rules. It probably plays a bigger role in lawyers` imaginations than in real life. CERTAINTY, UNCERTAINTY, contracts. In terms of commitment, one thing is certain when its nature, quality and quantity are described and clearly stated, Dig. 12, 1, 6. It is uncertain when the description is not that of a single object, but only of the species.
Louis. Code, art. 3522, No. 8 5 Co. 121. Certainty is the mother of rest, and therefore the law aims at certainty. 1 thickness. 245. Law of 27 July 1789, ii. 2, 1 The laws of history, 6.
His remuneration for his employer does not exceed two thousand dollars per year. Gordon`s excavation. 211. 2. if the wording of a contract is so vague that its meaning cannot be determined with certainty and the limitation period for fraud excludes the admissibility of Parol evidence to clarify the difficulty; 5 Barn. & Cr. 588; L. C. 12 Eng. Comm. R. S.
827; or proof of the slogan cannot provide the defect, then no effect can be obtained either by law or by equity. 1 Russ. & M. 116; 1 chap. Pr. 123. 3. It is a legal maxim that what can be done safely is certain; certum est quod certum reddi potest Co.
Litt. 43; For example, if a man sells the oil he has in his store for as much as a gallon, although there is uncertainty about the amount of oil, but to the extent that it can be determined, the maxim applies and the sale is good. See General, Narrative, Gl. El. sections 240 to 256; Mitf. Pl. de Jeremy, 41; Apples Gl. Pl.
5; Wigr. on disk. 77. The term “latent ambiguity” has been used to describe such situations. (Black`s Law Dictionary defines latent ambiguity as “an ambiguity that does not occur readily in the language of a document, but arises from a minor matter when the terms of the document are applied or executed,” and then alludes to Raffles v. Wichelhaus.) But invoking ambiguity in this context only blurs matters, because ambiguity plays no role in creating the uncertainty that flows from excessive generality – overly general provisions do not convey other meanings. In contract law, the “reasonable person” view is used to determine whether a vagueness provision is met. (Otherwise, indeterminacy would be completely relative.) If a certain vague standard refers to the point of view of a party (as in satisfactory for Acme), then, in assessing satisfaction, one would take the point of view of a reasonable person in that party`s position, rather than the actual point of view of that party. It is common for authors to attempt to circumvent the reasonable person standard by introducing, at their discretion, a vague provision or deviation that Acme is satisfied with in its sole discretion. But a court could very well find that such a measure violates the duty to act in good faith; See this article. Courts tend to attribute all this uncertainty to ambiguity, which is the result of using ambiguity and ambiguity to convey a broader meaning than linguists understand – see how Black`s Law Dictionary defines ambiguity as “uncertainty of meaning or intent, as in a contractual clause or statutory provision.” But the broader meaning is not particularly useful, because each source of uncertainty works differently from the others. Put them in the same bag and you may misunderstand them.
A contractual provision is too general if, due to a lack of detail, it is not clear what it refers to. If a contractual provision is too broad, it falls more within the scope of the provision than the parties had intended, creating confusion as to the actual intention of the parties. For example, Acme is supposed to buy the Audi from Widgetco is too general if Widgetco owns more than one car made by Audi. UNCERTAINTY. What is unknown or vague. Empty certainty. The inconsistency in contracts arises from the use of a word or phrase to convey two different meanings – for example, the use of debit to express both obligations and conditions (see this post). The inconsistency also results from the use of two or more different words or phrases to convey the same meaning. [I was asked to write this post after consulting dozens of cases over the past few months that supposedly involved ambiguity, but actually dealt with a number of other issues. I intend to include a version of this in MSCD2, so I would appreciate feedback.] Uncertainty in contract wording stems primarily from six sources: ambiguity, overbreadth, inconsistency, redundancy, conflict and vagueness.
The first five are harmful, while the last – indeterminacy – is an essential drawing tool when used with caution. Different types of ambiguities occur in contracts. One is syntactic ambiguity, which results primarily from the order in which words and sentences appear and how they are grammatically related to each other. There is also the ambiguity that MSCD groups under the heading “the game against the whole” (see 8.4), and the ambiguity associated with the language of discretion (I will discuss this in MSCD2). Dismissal in contracts results from the inclusion in a provision of a word or expression that conveys a meaning expressed by one or more other words or expressions in that provision. A particular reader may not be sure that a particular word or phrase is actually redundant and may try to attribute unintended meaning to a particular provision – a witness dispute over the meaning of indemnifying and holding harmless (see this post). From a linguistic point of view, a treaty provision is ambiguous if it is capable of conveying two or more incompatible meanings. Such indeterminacy, obscurity or confusion in a written document, for example: a desire that it becomes incomprehensible to those who have to execute or interpret it, so that no particular meaning can be drawn from it The inconsistency creates confusion and an aggrieved party could invoke the inconsistency to attribute an unintended meaning to a particular provision. It is common for practitioners to refer to “creative ambiguity”, but it is likely that they refer to vagueness (see below) as there seems to be nothing creative about ambiguity.