Updated: Sep 24, 2019
By Ken Adams
Ken Adams here. My subject is how to express contract provisions clearly. Inevitably, that involves linguistics. I have no background in linguistics, but fortunately I can recognize when I need help, and I’ve been able to call on some titans of linguistics to bail me out. I got that sort of help for my October 2016 article in the Michigan Bar Journal entitled Know Your Enemy: Sources of Uncertain Meaning in Contracts. It offers an overview of ambiguity, vagueness, and the other sources of uncertain meaning.
What’s the opposite of “plain language” in contract drafting? Well, there’s contract prose that’s wordy. That’s ornate. That’s archaic. But most pernicious is prose that’s confusing. Confusion leads to uncertain meaning; uncertain meaning can lead to dispute; and winning a dispute over uncertain meaning is a distant second to avoiding the dispute in the first place.
If you want to root out confusion, you have to know the forms in which it comes. This article describes the different kinds of uncertain meaning in contract language: ambiguity, failure to be sufficiently specific, mistake, conflict, failure to address an issue, and vagueness. All are pernicious, except for vagueness, which is an essential drafting tool when used carefully.