A Manual of Style for Contract Drafting, Third Edition by Kenneth A. Adams

Author:Kenneth A. Adams
Language: eng
Format: mobi
Tags: EBC Converted, Business, Law, Education & Reference
Publisher: American Bar Association
Published: 2013-02-01T06:00:00+00:00

11.116

Similarly, it didn’t make sense for the court

to conclude that reasonableness of Meyer’s meaning

was bolstered by the court’s mistaken view that

CUNA could have avoided any ambiguity by using

the word and instead of or. Again, the ostensible

weakness of one alternative meaning doesn’t serve

to bolster the reasonableness of another alternative

meaning.

PRACTICAL CONSIDERATIONS

11.117

The Third Circuit’s analysis of the contract

language at issue in Meyer has lessons to offer

drafters.

The Risks

11.118

Meyer serves as a reminder that if you draft

contracts, it would be reckless of you not to be alert

to ambiguity of the part versus the whole. Unless

you’re attuned to it, the odds are that you’ll be

oblivious to alternative possible meanings unless

they give rise to a dispute.

11.119

And Meyer is one of many cases in which

judges have shown themselves ill-equipped to

analyze issues relating to ambiguity of the part

versus the whole. The judge in Meyer instead relied

on a dictionary definition, something judges are

increasingly doing. See Adam Liptak, Justices

Turning More Frequently to Dictionary, and Not

Just for Big Words, N.Y. Times, June 13, 2011, at

A11. That’s usually a poor substitute for the

semantic acuity required to rigorously parse

537

confusing contract language. So don’t expect judges

to be equipped to sort out in a sensible manner any

part-versus-the-whole mess you create.

Whether to Eliminate Alternative Meanings

11.120

The court’s opinion in Meyer serves as a

reminder that drafters should consider how far to go

in seeking to avoid ambiguity of the part versus the

whole.

11.121

Alternative meanings caused by or and and

are virtually inescapable in contract language.

Consider two components of the definition of “Total

Disability” that weren’t at issue in Meyer. The

definition refers to “a medically determined sickness

or accidental bodily injury.” Does that mean that

disability that is due to both sickness and injury

doesn’t fall within the definition? And consider the

reference to “any occupation for which he is

reasonably qualified by education, training or

experience.” Does that mean that if the member is

qualified because of some combination of education,

training, and experience, it would be irrelevant for

purposes of the definition?

11.122

You could revise contract language to

eliminate the possibility of alternative meanings, but

that would make it more wordy. If any alternative

meanings aren’t reasonable, you could elect to leave

the language as is, on the grounds that the limited

risk of ambiguity doesn’t warrant the extra verbiage.

For example, it would be outlandish to revise the

definition of “Total Disability” to rule out the

538

possible meanings suggested in the immediately

preceding paragraph.

11.123

But you cannot expect courts to be

equipped to determine whether the alternative

meanings of a given provision are reasonable and so

give rise to ambiguity—after all, the court in Meyer

wasn’t.

If

an

alternative

meaning

appears

unreasonable but could result in mischief if

misconstrued by a court, the cautious drafter should

consider redrafting that provision to eliminate the

alternative meaning. The meaning attributed by

Meyer to the language at issue in his dispute perhaps

represents just such an alternative meaning.

11.124

[47] and [48] provide examples of the sort

of judgment calls required when determining

whether to eliminate possible alternative meanings.

Each example expresses two possible meanings, but

anyone inclined to recommend that a drafter

restructure them to eliminate one of those meanings

should consider two factors. First, of the two

possible meanings of each example, one is clearly

the more natural, namely [47a] and [48a]. Second,

given the extra verbiage required to avoid

ambiguity, prose stylists would likely steer clear of

[47a] and [48a].

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