Words Are The Skin Of A Living Thought

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“A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” [Justice Oliver Wendell Holmes, Jr. in Towne v. Eisner, 245 U.S. 418 (1918).] We have loved that quote for nearly 40 years. It tells a lot about the agreements we write.

Consider the word: “maintain.” We looked at how web-based dictionaries define it. According to www.merriam-webster.com, it means: “to keep in an existing state (as of repair, efficiency, or validity).” https://www.ldoceonline.com/dictionary offers that “maintain” means to: “look after something: to keep a machine, building, etc. in good condition by checking and repairing it regularly.” www.collinsdictionary.com similarly offers: “If you maintain a road, building, vehicle, or machine, you keep it in good condition by regularly checking it and repairing it when necessary.” www.lexico.com (powered by Oxford) agrees when it tells us that “maintain” means to: “keep (a building, machine, or road) in good condition by checking or repairing it regularly.”

We could go on and cite other dictionaries, even “old-fashioned” bound, paper ones that tell us that the obligation to maintain includes the obligation to repair. And, if “maintain” narrowly meant to “keep in the same condition,” wouldn’t that mean to do whatever was needed, including making repairs? Here’s what, edited for context, a New York lower court wrote in a 2018 decision: “… as a general matter, the terms ‘maintain’ and ‘repair’ may overlap in meaning.” In that decision, the court looked at a lease that included several different provisions about repair responsibilities. Here are those provisions:

(1) Landlord shall take good care of and maintain and repair the Building both exterior and interior (including sidewalks and sewer and utility company connections).

(2) Further, Tenant shall maintain and make all necessary non-structural repairs to the Premises, except that it shall be entitled to receive any insurance proceeds collected by the Landlord which are attributable to non-structural losses occurring within the Premises.

(3) The interior of the Premises, storefronts and store doors, vaults (if used by Tenant) and Tenant installations shall be maintained by Tenant, except that damage caused thereto by Landlord or other occupants or tenants in the Building shall be repaired by Landlord.

Readers unfamiliar with New York City or other large cities may misunderstand one possibly “strange” word in the third provision, the word: “vault.” In the context provided, “a sidewalk vault is that portion of a building’s cellar that extends beneath a city sidewalk.” Most vaults were originally constructed to accommodate the delivery and storage of coal burnt in boilers located in the cellar. Today, where still in place, they are often used for storage.

Even though sidewalk vaults may be located outside of a property’s lot lines, property owners still have legal responsibility for their repair. What is more, typically the owner of such a vault is responsible for the public sidewalk covering that vault. New York City’s website is typical when it comes to saying this. Here’s how it puts it: “The City will not repair sidewalks over vaults or other structure[s]. The property owner is responsible for making the repairs. Fixing a sidewalk over a vault may require considerable structural work. If the defective portion of your sidewalk is over a vault, you must fix it privately.”

Let’s return to the three lease provisions shown above. Assuming that the tenant is using a sidewalk vault that services the leased space, does it have the responsibility to make needed repairs to it to cure water intrusion? Let’s assume that those repairs do not include structural repairs.

According to the plain text in (3), the tenant would be obligated to maintain the vault. And (as shown), according to many dictionaries, “to maintain” incorporates the obligation “to repair.” Though some of the dictionaries we investigated made no reference to “repair,” none even suggested that maintaining did not include repairing. So, it’s “open and shut” that the tenant has to repair the vault. Right? Well, as any reader for whom this is not their first Ruminations blog posting knows, “Not so fast.” After all, a “word … may vary greatly in color and content according to the circumstances … in which it is used.”

Key to the explanation why a tenant with a specific obligation to “maintain” a sidewalk vault has to “check and repair it regularly,” is how agreements (such as leases) are interpreted. [Yes, we know that the phrase “check and repair it regularly” doesn’t appear in the lease presented to the New York court. All we did was to interlineate one of the dictionary definitions for the word “maintain.”]

At least a dozen times before in the history of the Ruminations blog, we’ve “lifted” words used by various courts to explain how contracts are interpreted. There’s a reason for that. It is that, over and over, we see agreements that seem to live in an alternate universe and, more frustratingly, we confront colleagues and others who don’t seem to know the meaning of the word: “context.” So, we’ll double down today by listing what “this week’s” court told the litigating parties:

Contracts “are construed in accord with the parties’ intent,” the best evidence of which is the language of the contract itself, read as a whole.

Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.

A contract is unambiguous if the language it uses has “a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion.”

To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.

Whether a contract is ambiguous “is a question of law to be resolved by the courts.”

Extrinsic or parol evidence—evidence outside the four corners of the document—is “admissible only if a court finds an ambiguity in the contract.”

Moreover, “provisions in a contract are not ambiguous merely because the parties interpret them differently.”

As a general rule, if the court finds that a contract is ambiguous, it cannot be construed as a matter of law on a motion for summary judgment.

[If the provision] is reasonably susceptible to more than one interpretation, and the difficulty is not resolved by reading the agreement as a whole, the provision is ambiguous and neither side is entitled to summary judgment construing it as a matter of law.

An exception exists, however, when the documentary evidence submitted on summary judgment resolves the ambiguity.

Conversely, if “the extrinsic evidence in the record is insufficient to resolve the ambiguity, the parties’ intent must be determined at trial.”

How did these rules play out when the New York court decided that the tenant had no responsibility to repair its leaking sidewalk vault?

According to the lease, the tenant only had the obligation to “maintain” the vault. It did not specifically call for the tenant to “repair” it. Thus the question was whether the parties intended that “maintain” included what our selected dictionaries say, i.e., to “repair.” Is that what the landlord and tenant intended? It seems not. In the other two cited provisions above, (1) and (2), “maintain” and “repair” are separately stated. [Landlord shall take good care of and maintain and repair the Building; Tenant shall maintain and make all necessary non-structural repairs to the Premises.] Using the court’s own words, “We may presume that the same words used in different parts of a writing have the same meaning,” it was clear to all (but the landlord and its counsel) that, in the CONTEXT presented within the lease, the tenant’s obligation to maintain the vault did not include the obligation to repair it.

There is a broad lesson here. If we want to honor our obligation to “write what we mean and mean what we write,” we can’t be lazy. When we express the same concept in different places, we need to use the same language. Otherwise, when different words are used, there must be a reason. “Maintain and repair” has to mean more than “maintain” alone. When we salt our documents with “not to be unreasonably withheld,” it must be that if these words are not present following an obligation, reasonableness is not required. “Complete” is more than “substantially complete,” even if that wasn’t intended. Ruminations has never seen a document of any length lacking such deficiencies. What saves us all is that many disputes never arise in practice and when they do, the parties lack the interest or energy to duke it out.

[For those who want to look at the New York court’s decision, that can be done by clicking: HERE. The decision was upheld by an appellate court last November. Readers may also be interested in looking at an earlier New York court decision by clicking: HERE.]

 

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