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.