Ambiguous wording in contracts

7/29/2019 Ambiguous wording incontracts

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Ambiguous wording

contractsin
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One of the tasks of the contractdraftsman is to try to avoid using words

and phrases that could have more than

one meaning. Here are a fewexpressions (only some of which

regularly feature in contracts) that could

mean the opposite of one another,depending on the context:


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To the Licensors knowledge, the moon is made of

cheese

This is usually intended to mean as far as the

Licensor is aware, but it could conceivably be

interpreted as a statement that the Licensor haspersonal knowledge that enables him to assert

positively the composition of the moon. We prefer

to use the as far as aware formula, as it does not

have this potential ambiguity. (There is a separatequestion as to whether such a warranty implies any

duty to check or do searches, but that is a different

issue.)


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Completion.

In contracts, completion often refers to an event where

formal documents are signed to give effect to a

transaction, ie at the start of the transaction. The USequivalent of this is closing. However, completion of a

contract could refer to when the work to be performed

under a contract has been completed, ie at the end of

the contract. We have encountered clients who have

used the word with this sense. Where the word is usedin a contract, it is prudent to check that there is no

ambiguity in context.


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Sanction.

This can mean:

permit or prohibit.


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Oversight.

This can mean:

supervision or mistake.


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Screen.

This can mean:

hide from view or show.


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Fabulous.

This can mean:

wonderful or unbelievable.


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http://ipdraughts.files.wordpress.com/2011/08/chuffed.jpg


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This is not the only type of

ambiguity that can arise incontracts, but it is often the most

striking to the reader


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:" can meanApparent"

"obvious" or "seeming, but in fact not".

" can mean:Awful""worthy of awe" or "very bad".

" can mean:Back"

"regressive" as in "to go back in time", or itcan mean:

"progressive" as in "to push back a deadline".

" can mean:Buckle"

"fasten securely" as in "buckle your seat

belt", or it can mean "fall apart" as in "buckle

under pressure".


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"Citation" can mean:

"commendation" or a "summons to appear incourt".

"To cleave" can mean:

"to cling" or "to split"."To comprise" can mean:

"to consist of" or "to make up or constitute".

"To dust" can mean:

to remove dust (cleaning a house) or to add

dust (dust a cake with powered sugar).


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"Fast" can mean :

"moving quickly" as in "running fast," or itcan mean "not moving" as in "stuck fast."

"To fight with someone" can mean:

"to fight against someone" or "to fightalongside someone".

"Impregnable" can mean:

"able to be impregnated" or "incapableof being entered".


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"Moot" can mean:

worthy of discussion or not worthy ofdiscussion.

"Nonplussed" can mean:

surprised and confused, but has come to

mean unperturbed in North American English.

"To overlook" can mean:

"to inspect" or "to fail to notice".

"Oversight" (uncountable) means:"supervision", "an oversight" (countable)

means "not noticing something".
http://en.wikipedia.org/wiki/Mass_nounhttp://en.wikipedia.org/wiki/Mass_noun


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"Off" can mean:

"deactivated" as in "to turn off", or it canmean "activated" as in "the alarm went off".

"To peruse" can mean:

"to examine in detail", or "to look over in acursory manner"

"Redundant" can mean:

"useless" or "extra caution".

"Refrain" means :both non-action and the repetition of an

action, e.g. in musical notation.


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"Resign" can mean:

"give up or quit" or "continue".

"To sanction" can mean:"to permit" or "to punish".

"Shelled" can mean:

"having a shell" or "has had the shell removed" (as

in shelling).

"To skin" means:

"to cover with skin" (as in to skin a drum) as well as

"to strip or peel off" (as in to skin an animal)."To stint" means:

"to stop", but the noun "stint" refers to the interval

of work between stops.


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"Strike", in baseball terms, can mean:

"to hit the ball" or "to miss the ball".

"To weather" can mean :"to endure" (as in a storm) or "to erode" (as in a rock).

"Weedy" can mean :

"overgrown" ("The garden is weedy") or stunted ("The boy

looks weedy")."Yield" can mean:

"to produce" (as in a chemical equation) or "to concede" (as

in driving).

"Ravel" can mean:

to combine thread or to separate it.

"Terrific" can mean:

"very good" or "very bad".


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Below is a list of many such words, and

their associated opposite (or near-opposite)

meanings.

(Note contradiction in meanings)


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to clarify

to cast a shadow over

adumbrate

verb anything

nothing

aught

noun

invoice (e.g. in a restaurant) money; banknotebillnoun

to secure in place

to dash away suddenly

bolt

verb

restrained (e.g. by rope)

to spring; leap

bound

adj./verb


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to fasten

to come undone; give way;

collapse

buckle

verb

to adhere; stick together

to cut apart; divide

cleave

verb

to fasten together; hold tightly to cut apart; cut off (e.g. with

shears)

clip

verb

to contain; include

to be composed of; consist of

comprise

verb

usual; normal

special; unique

custom

adjective


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to remove fine particles from (e.g.

when cleaning)

to sprinkle fine particles onto

dust

verb

fixed firmly in place

moving quickly; speedy

fast

adverb

just meets minimum standards;

satisfactory

considerably better than average;

excellent

fine

adjective

to produce; distribute to stop producing; cease functioning

give outverb

advantage (e.g. in sport)

disadvantage; disability

handicap

noun/verb


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to support; cope

to hinder; delay

hold up

verb

impossible to enter (e.g. of a fortress)

able to be impregnated

impregnable

adjective

to lend; rent out

to borrow; hire

lease

verb departed from

remaining

left

verb

to allow; grant permission

to prevent (e.g. "without let or hindrance")

let

verb

actually; really

figuratively; virtually

literally

adverb


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archetype; example

copy; replica

model

noun

debatable; arguable academic; irrelevant

moot

adjective

to examine; watch over

to fail to notice; miss

overlook

verb watchful care; supervision

overlooking; omission

oversight

noun

an equal; fellow (e.g. classmate)

a nobleman; person of higher rank

peer

noun

to begin to move hurriedly

stationary (e.g. "stay put")

put

adj./verb


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to generate; produce

to extinguish; put an end to

put out

verb

to pose a problem

to solve a problem

puzzle

verb

very small (e.g. in Physics) very large (e.g. "quantum leap")

quantumadjective

to tangle; complicate

to disentangle; separate

ravel

verb

to lend; lease out

to borrow; hire

rent

verb


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to quit; give up

to sign up again

resign

verb

to remove completely

to become firmly established

root

verb

to endorse; authorise a punitive actionsanctionverb/noun

murderous

cheerfully optimistic

sanguine

adjective

to examine closely

to glance at hastily

scan

verb


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to view; show

to conceal; shield

screen

verb to remove seeds from

to add seeds to

seed

verb

to fix in place to flow; move on

setverb

latter part of a period of time

early part of a period of time

shank

noun to cover with a skin

to remove the skin

skin

verb


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to join together

to cut in two

splice

verb

to miss (e.g. in baseball)

to hit; collide with

strike

verb

to propose; suggest to postpone; shelvetableverb

to soften; mollify

to strengthen (e.g. a metal)

temper

verb to cut pieces off (e.g. fingernails)

to add to; ornament

trim

verb


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to withstand; stand up to

to wear away

weather

verb

to start; prepare

to end; conclude

wind up

verb


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Interpretation of

Ambiguous contracts


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A contract is ambiguous when it is uncertain what

the intent of the parties was and the contract iscapable of more than one reasonable

interpretation. Sometimes ambiguous terms can

be explained by the admission of parol

evidence. Also, Courts abide by the rule that anambiguous contract is interpreted againstthe

party who drafted it. In other words, the party

who did not draft the contract will be given the

benefit of the doubt so to speak. Also,

sometimes the background or circumstances

surrounding the contract can eliminate ambiguity


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For example, in a Minnesota case, suit was

brought in Minnesota on a Canadian policy ofinsurance. The question arose as to whether the

dollar limit of the policy referred to Canadian

dollars or American dollars. The Court concluded

that Canadian dollars were intended since theinsurer and the insured were both Canadian

corporations, the policy was entered into in

Canada, and over the years premiums had been

paid in Canadian dollars, and a prior claim on thepolicy had been settled by using Canadian

dollars.


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Again, if two interpretations are

reasonably possible, the contract will beinterpreted in favor of the person who

did not draft the contract and against

the person who did draft it. An exampleof this would be preprinted insurance

policies. Any clause which is capable

of two interpretations will usually beinterpreted against the insurer and in

favor of the insured.


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Sometimes a Court may imply a term to cover a

situation where the parties fail to provide theterm. The Court may also imply a term if its

necessary to give a contract a construction or

meaning that is reasonable. For example, if a

contract does not state its duration, the Court mayimply that the contract is to be performed or

continue for a reasonable time reasonable in

relation to the type of contract that it is. However, a

term will not be implied in a contract when the Courtconcludes that the parties intended for the contract

to be silent on a particular point.


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In every contract there exists an implied

covenant of good faith and fair dealing. Forexample, when a contract to purchase a

house is made subject to the condition that

the buyer can obtain financing, the buyer

must make a reasonable good faith effort to

obtain the financing or be held in breach of

the contract. The implied duty to act in

good faith means an honest, good faitheffort to satisfy the condition of the contract.


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As a general rule, a party is bound by acontract even if it proves to be a bad

bargain. However, if a court is called

upon to interpret a contract, if possible,the court will interpret it in such a way

as to avoid hardship, particularly when

the hardship would hurt the party whohad the weaker bargaining position.


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51/2004450/2004:

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:

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67512004:


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Ambiguous wording in contracts

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