Again: Say What You Mean; Mean What You Say!

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It’s been a while since we used these words: “Say What You Mean; Mean What You Say!” Well, we’re back (and, no, this isn’t going to be a dinosaur’s story.) Today, we report on an unremarkable, unpublished January 22, 2018 Order out of a United States District Court in Illinois. That’s what brings us back to those words.

Before we reveal exactly what we saw in that Order, we’ll start with a simple thought: How many times have you seen the following formulation?

If Grantor begins such repair work or to performs such obligations, but fails to promptly and diligently prosecute the same to completion within thirty (30) days of so beginning, … [Ed. – Note the underlined words]

Well, that drives us crazy. Obviously, the parties meant “within thirty (30) days after.” Yes, “after” is obvious in our example, but every time you encounter this formulation, think about whether, in the case in front of you, you really meant to say that the action could happen within the 30 days BEFORE.

Now to the case at hand. It involves a charter school that leased space before it had received government approvals to operate. Its lease had a pretty common contingency allowing a tenant in such a situation to terminate its lease should the needed approvals not be issued by a given date:

The parties agree and acknowledge that this Lease shall be contingent upon Tenant obtaining a Special Use Permit (“SUP”) for its Use, if the SUP is required by the City of Chicago. If Tenant cannot obtain the SUP within one hundred twenty (120) days from the Lease Reference Date, this Lease may be terminated by either party, without penalty, upon written notice to the other party.

Well, the tenant didn’t get the Special Use Permit within the 120 days. So, 17 months after the Lease Reference Date, it sent a notice of termination to the landlord. The landlord’s expectations were dashed and it refused to return the tenant’s security deposit. Its theory was that the lease provision implied that a termination notice had to be sent within the same 120 period. It argued to the court that the provision must have meant that because, otherwise, the tenant could have received its permit after 120 days and would still have the right to terminate (presumably because it changed its mind). That’s a good thought, but that isn’t what happened, though we’re not sure what the landlord would have argued had it, not the tenant, sent a termination notice at that point.

The court rejected the landlord’s argument with these words:

[T]he Lease clearly and unambiguously allows either party to terminate the lease if the condition of obtaining a SUP from the City was not met within 120 days. Accordingly, any allegation that [the tenant] breached the Lease by providing written notice of termination after 120 days had elapsed is contradicted by the express terms of the contract.

We think the court got it right, though we don’t know what the court would have done had the tenant received its permit after 120 days, but before terminating. Could the tenant have torn up the lease? Could the landlord have done so? Would it matter if the business environment had dramatically changed for one or the other by the time the permit was issued, making the permit unusable? The answer isn’t obvious. Set that question aside. Isn’t this common drafting error an invitation for litigation and thus uncertainty? Perhaps the people who drafted (and accepted) this particular formulation used this as a rainmaking technique for the legal profession. [Ouch, that hurts.]

Plain and simple, if we are going to set a deadline, we need to do so. We need, using our example, to say something like:

If Tenant cannot obtain the SUP within 120 days after the Lease Reference Date, this Lease may be terminated by either party, without penalty, upon written notice to the other party given after that 120th day but before the day that is 150 days after the Lease Reference Date, TIME BEING OF THE ESSENCE.

or:

If Tenant cannot obtain the SUP within 120 days after the Lease Reference Date, this Lease may be terminated by either party, without penalty, upon written notice to the other party given before the day the SUP is actually obtained. Tenant must act in good faith and use commercially reasonable efforts to obtain the SUP.

To round out the court’s thoughts, here’s something else the court wrote:

Moreover, the provision clearly states that “this Lease may be terminated by either party, without penalty, upon written notice to the other party.” This is permissive language as opposed to mandatory language like “shall,” and gives [the landlord] the same ability to terminate the contract if [the tenant] was unable to obtain a permit within 120 days thereby alleviating some of his risk.

So, there are two examples of “Say What You Mean; Mean What You Say!” both from the same case: (1) don’t rely on certainty by implication; and (2) recognize the difference between “should” (Ruminations  prefers “will”) and “may.” [To see the Court’s Order, click: HERE.]

While we are at it, i.e., railing in favor of language that provides certainty and predictability for our leases and other agreements, here’s a follow-up, a redux so to speak. Just about a year ago, we wrote about a well-publicized Maine labor-law case whose result turned on interpreting the presence or absence of an “Oxford” comma. If you were out of the country or otherwise didn’t hear about this case, then take a look at our explanation by clicking: HERE.

It short, the state of Maine and other states (and newspapers, etc.) have their own stylebooks telling those who write laws, news stories, magazine articles, etc., when or whether to use a comma in series such as: “The product is available in red, blue, green, and yellow.” The last comma in that series is called the “Oxford” comma. As used in our example, we think everyone would read the quoted text the same way with or without that comma. But, what about this sentence: “I’d like to thank our parents, Mother Teresa and the pope”? Got the point?

So, even where a stylebook (or your habit) says not to use the Oxford comma, that stylebook needs to include an “exception,” basically that the comma should be used if omitting it will create ambiguity or misunderstanding. Maine’s legislative stylebook did not include such an exception. So, when the Maine court looked at:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

it interpreted that law to cover “packing for distribution” of the listed items, (1), (2), and (3) as contrasted to covering an entirely different category: “distribution” of those listed items.

It seems, as most analysts had concluded, that Maine’s legislature hadn’t actually intended the result delivered by the court. So, the lawmakers amended the law to read:

The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Well, that would have changed the result the court and reached. But, why didn’t it change its legislative manual to make it similar to lots of other state’s legislative stylebooks? Perhaps, like many of us, it didn’t want to admit that it hadn’t done a very good job in the first place? Otherwise, it would have just added a “comma.” Instead, it decided that its stylebook didn’t say anything about a “Cambridge” semi-colon, so it was free to use the semi-colon anyway it wished, in this case to provide clarity about the law’s intention. [We made up the “Cambridge” semi-colon. There probably is no such thing.]

Maine’s legislature is not alone. How often do we and others merely “patch” up our drafted language (subconsciously, in almost all cases) in an effort to defend our original poor drafting? Ruminations has a simple rule. If someone says what we have drafted is unclear, we rewrite it. We don’t try to convince them that the text is clear. By definition, text that isn’t easily understood by a reader is unclear. We won’t be around to explain to all of those who read our agreements what those agreements “really mean.” Our writing needs to speak for itself.

[By the way, the dairy that lost the Maine employment wage case settled with the union that brought it. Here’s an article from The New York Times reporting on the follow-up: HERE.]

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Comments

  1. Elliot L. Warm, Esq. says:

    Good point at the end. As to my own situation, I go out of my way to try to be accurate in my writing of anything “legal” (perhaps over-using defined terms), but sometimes my employer, a real estate developer and manager, will express confusion about what I have written. I tend to argue with him if I believe that my language has accurately expressed what was intended, but once I’m through defending my honor so to speak, I always change the language, knowing that a highly successful businessman had trouble understanding it. I think I sometimes outsmart myself by trying to be too precise, as a document should not only be technically accurate as to its meaning but be reasonably comprehensible, at first blush if possible, to any intelligent reader of it, not just lawyers. That said, I know for sure that commas count.

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