The Artful Use of Intentional Ambiguity in Document Drafting

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I was musing about the art of reaching agreements and memorializing those agreements. OK, it was about what it takes to get the last provisions negotiated in a contract. Those might not be the chronologically “last” provisions, but you’ll see what I mean.

Sometime the negotiators simply can’t agree – get on the same page – about a minor or tertiary issue. It wouldn’t be of great consequence if the provision were drafted one way or the other. Or, it may be that there are some many different, but little things that might come up in the future and the negotiators can’t agree on a “general” rule to apply covering all of those circumstances. So, to Get The Deal Done, they employ a technique that I think I coined as: “Intentional Ambiguity.” I thought I’d write a little something about it.

So, I engaged Google, the corporation with the credo: “Do No Harm,” as my research team. The first thing I learned was that there was “Intentional Ambiguity” even before I coined the term. And, in many contexts, it deals with ecclesiastical or diplomatic matters. That wasn’t enough for me to re-title this piece.

First, a language lesson: there is “ambiguity” and there is “vagueness.” They aren’t the same. They don’t overlap. When something is ambiguous, it means that it is capable of more than one meaning. When something is vague, it is unclear, not capable of being defined. That’s a critical difference because the meaning of an ambiguous term or provision can often be discerned from the facts and circumstances that you are looking at. My research team located someone’s blog entry and it used this newspaper headline as an example: “Bill Dies in House.” [Note: Headlines use uppercase letters at the beginning of most words.] So, how did poor Bill die? Oh, that’s not what it meant? Yes, the headline is ambiguous, but once you start reading the story, you can figure out which “meaning” was intended.

So, too, we use ambiguous terms. We say “materially adverse,” which could mean a lot of different things. It isn’t vague because, given the surrounding facts and circumstances at the time you need to know if something is “materially adverse,” you’ll know if you are in the “ballpark.” Some things will clearly not be “materially adverse,” some will clearly be “materially adverse,” and for the gray area, we have judges if the parties can’t agree. By the way, they call them judges because their job is to judge. No document could be completed if we didn’t “punt” these “definitions” (think – “materially adverse”) down the line to when we need to figure out what the parties intended. Is this entirely satisfying to people who want everything chiseled in stone? No, but it sure works to Get the Deal Done so that the parties can start cranking in those bucks.

“Materially adverse,” “with diligence,” “promptly,” “reasonable,” and a list of other “intentional ambiguities” are the stock and trade of contract drafting. But, so are solutions that are crafted for particular, non-generic, situations. In a later posting, I might list some examples. If you have any candidates, please post them to www.retailrealestatelaw.com.

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Comments

  1. I like “Substantial,” such as “upon substantial completion of Landlord’s Work…”, or “…substantially similar condition…”

  2. Ira – I have been in negotiations where and the lawyer on the other side and I intentionally agreed to leave a term or phrase ambiguous because we could not come to a definitive resolution that was clearer as it would favor only one side and not the other, thus prolonging the negotiation – it was to get the deal done. I only did this when (i) the issue was not overly significant, and (ii) I felt a court would more likely rule in my client’s favor should it come to that. Admittedly, we were punting the dispute to a later litigation because otherwise we would each be stuck in our positions and the deal would stalemate (to the displeasure of our clients). An assumed risk. I don’t agree that terms such as “materially adverse” are necessarily ambiguous. At some point one can only drill down so far and must let commonly understood English resolve the issue.

    Jack – I don’t favor use of the term “substantial completion” without defining it more. I’ve had landlords allege that a premises was substantially complete when there was still an opening in the ceiling or roof, exposing the premises to the elements! I carefully define substantial completion as all Landlord’s Work completed except for very minor adjustments or finishing details.

  3. Ira: In my book A Manual of Style for Contract Drafting, I distinguish vagueness from ambiguity, and I say that words like “reasonable,” “material,” and “promptly” are vague. I also say that although vagueness is an essential drafting tool, ambiguity is always a bad thing, and that getting creative with ambiguity can come back to bite you. If you think my analysis is mistaken, I’d be interested to hear about it. Ken

  4. I often use the term, “reasonable” because it often forces the parties to work out minor disputes on their own without resorting to attorneys and the courts. I do not consider the term ambiguous but rather vague. While the term is subject to multiple meanings, it is vague because those meanings are later undefinable without the cooperation and agreement of the parties or intervention of the court and the court’s interpretation of the meaning of the word and the intention of the parties.

    The phrase “substantial completion” is similar but I do not like using it without further definition in the agreement. It is often used to describe the completion of work and for the purpose of determining the commencement or rent commencement date of the lease and often gives rise to significant disputes at a time that the parties need to have the experience of cooperation rather than disagreement under their belts.

  5. frontncenter says:

    Ah yes. The problematic yet highly revered vague and/or ambiguous nature of uncertain intentional language, of which may or may not rely upon expressed defined and/or undefined terms. Or as few refer as, “Covenant Decor.”

  6. frontncenter says:

    The drafters of REMIC PSA’s have made an exquisite art form of it. Truly masterful confusion artists…

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