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Ambiguous wording
contractsin
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One of the tasks of the contractdraftsman is to try to avoid using words
and phrases that could have more than
one meaning. Here are a fewexpressions (only some of which
regularly feature in contracts) that could
mean the opposite of one another,depending on the context:
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To the Licensors knowledge, the moon is made of
cheese
This is usually intended to mean as far as the
Licensor is aware, but it could conceivably be
interpreted as a statement that the Licensor haspersonal knowledge that enables him to assert
positively the composition of the moon. We prefer
to use the as far as aware formula, as it does not
have this potential ambiguity. (There is a separatequestion as to whether such a warranty implies any
duty to check or do searches, but that is a different
issue.)
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Completion.
In contracts, completion often refers to an event where
formal documents are signed to give effect to a
transaction, ie at the start of the transaction. The USequivalent of this is closing. However, completion of a
contract could refer to when the work to be performed
under a contract has been completed, ie at the end of
the contract. We have encountered clients who have
used the word with this sense. Where the word is usedin a contract, it is prudent to check that there is no
ambiguity in context.
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Sanction.
This can mean:
permit or prohibit.
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Oversight.
This can mean:
supervision or mistake.
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Screen.
This can mean:
hide from view or show.
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Fabulous.
This can mean:
wonderful or unbelievable.
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This is not the only type of
ambiguity that can arise incontracts, but it is often the most
striking to the reader
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:" can meanApparent"
"obvious" or "seeming, but in fact not".
" can mean:Awful""worthy of awe" or "very bad".
" can mean:Back"
"regressive" as in "to go back in time", or itcan mean:
"progressive" as in "to push back a deadline".
" can mean:Buckle"
"fasten securely" as in "buckle your seat
belt", or it can mean "fall apart" as in "buckle
under pressure".
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"Citation" can mean:
"commendation" or a "summons to appear incourt".
"To cleave" can mean:
"to cling" or "to split"."To comprise" can mean:
"to consist of" or "to make up or constitute".
"To dust" can mean:
to remove dust (cleaning a house) or to add
dust (dust a cake with powered sugar).
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"Fast" can mean :
"moving quickly" as in "running fast," or itcan mean "not moving" as in "stuck fast."
"To fight with someone" can mean:
"to fight against someone" or "to fightalongside someone".
"Impregnable" can mean:
"able to be impregnated" or "incapableof being entered".
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"Moot" can mean:
worthy of discussion or not worthy ofdiscussion.
"Nonplussed" can mean:
surprised and confused, but has come to
mean unperturbed in North American English.
"To overlook" can mean:
"to inspect" or "to fail to notice".
"Oversight" (uncountable) means:"supervision", "an oversight" (countable)
means "not noticing something".
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"Off" can mean:
"deactivated" as in "to turn off", or it canmean "activated" as in "the alarm went off".
"To peruse" can mean:
"to examine in detail", or "to look over in acursory manner"
"Redundant" can mean:
"useless" or "extra caution".
"Refrain" means :both non-action and the repetition of an
action, e.g. in musical notation.
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"Resign" can mean:
"give up or quit" or "continue".
"To sanction" can mean:"to permit" or "to punish".
"Shelled" can mean:
"having a shell" or "has had the shell removed" (as
in shelling).
"To skin" means:
"to cover with skin" (as in to skin a drum) as well as
"to strip or peel off" (as in to skin an animal)."To stint" means:
"to stop", but the noun "stint" refers to the interval
of work between stops.
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"Strike", in baseball terms, can mean:
"to hit the ball" or "to miss the ball".
"To weather" can mean :"to endure" (as in a storm) or "to erode" (as in a rock).
"Weedy" can mean :
"overgrown" ("The garden is weedy") or stunted ("The boy
looks weedy")."Yield" can mean:
"to produce" (as in a chemical equation) or "to concede" (as
in driving).
"Ravel" can mean:
to combine thread or to separate it.
"Terrific" can mean:
"very good" or "very bad".
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Below is a list of many such words, and
their associated opposite (or near-opposite)
meanings.
(Note contradiction in meanings)
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to clarify
to cast a shadow over
adumbrate
verb anything
nothing
aught
noun
invoice (e.g. in a restaurant) money; banknotebillnoun
to secure in place
to dash away suddenly
bolt
verb
restrained (e.g. by rope)
to spring; leap
bound
adj./verb
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to fasten
to come undone; give way;
collapse
buckle
verb
to adhere; stick together
to cut apart; divide
cleave
verb
to fasten together; hold tightly to cut apart; cut off (e.g. with
shears)
clip
verb
to contain; include
to be composed of; consist of
comprise
verb
usual; normal
special; unique
custom
adjective
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to remove fine particles from (e.g.
when cleaning)
to sprinkle fine particles onto
dust
verb
fixed firmly in place
moving quickly; speedy
fast
adverb
just meets minimum standards;
satisfactory
considerably better than average;
excellent
fine
adjective
to produce; distribute to stop producing; cease functioning
give outverb
advantage (e.g. in sport)
disadvantage; disability
handicap
noun/verb
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to support; cope
to hinder; delay
hold up
verb
impossible to enter (e.g. of a fortress)
able to be impregnated
impregnable
adjective
to lend; rent out
to borrow; hire
lease
verb departed from
remaining
left
verb
to allow; grant permission
to prevent (e.g. "without let or hindrance")
let
verb
actually; really
figuratively; virtually
literally
adverb
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archetype; example
copy; replica
model
noun
debatable; arguable academic; irrelevant
moot
adjective
to examine; watch over
to fail to notice; miss
overlook
verb watchful care; supervision
overlooking; omission
oversight
noun
an equal; fellow (e.g. classmate)
a nobleman; person of higher rank
peer
noun
to begin to move hurriedly
stationary (e.g. "stay put")
put
adj./verb
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to generate; produce
to extinguish; put an end to
put out
verb
to pose a problem
to solve a problem
puzzle
verb
very small (e.g. in Physics) very large (e.g. "quantum leap")
quantumadjective
to tangle; complicate
to disentangle; separate
ravel
verb
to lend; lease out
to borrow; hire
rent
verb
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to quit; give up
to sign up again
resign
verb
to remove completely
to become firmly established
root
verb
to endorse; authorise a punitive actionsanctionverb/noun
murderous
cheerfully optimistic
sanguine
adjective
to examine closely
to glance at hastily
scan
verb
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to view; show
to conceal; shield
screen
verb to remove seeds from
to add seeds to
seed
verb
to fix in place to flow; move on
setverb
latter part of a period of time
early part of a period of time
shank
noun to cover with a skin
to remove the skin
skin
verb
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to join together
to cut in two
splice
verb
to miss (e.g. in baseball)
to hit; collide with
strike
verb
to propose; suggest to postpone; shelvetableverb
to soften; mollify
to strengthen (e.g. a metal)
temper
verb to cut pieces off (e.g. fingernails)
to add to; ornament
trim
verb
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to withstand; stand up to
to wear away
weather
verb
to start; prepare
to end; conclude
wind up
verb
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Interpretation of
Ambiguous contracts
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A contract is ambiguous when it is uncertain what
the intent of the parties was and the contract iscapable of more than one reasonable
interpretation. Sometimes ambiguous terms can
be explained by the admission of parol
evidence. Also, Courts abide by the rule that anambiguous contract is interpreted againstthe
party who drafted it. In other words, the party
who did not draft the contract will be given the
benefit of the doubt so to speak. Also,
sometimes the background or circumstances
surrounding the contract can eliminate ambiguity
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For example, in a Minnesota case, suit was
brought in Minnesota on a Canadian policy ofinsurance. The question arose as to whether the
dollar limit of the policy referred to Canadian
dollars or American dollars. The Court concluded
that Canadian dollars were intended since theinsurer and the insured were both Canadian
corporations, the policy was entered into in
Canada, and over the years premiums had been
paid in Canadian dollars, and a prior claim on thepolicy had been settled by using Canadian
dollars.
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Again, if two interpretations are
reasonably possible, the contract will beinterpreted in favor of the person who
did not draft the contract and against
the person who did draft it. An exampleof this would be preprinted insurance
policies. Any clause which is capable
of two interpretations will usually beinterpreted against the insurer and in
favor of the insured.
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Sometimes a Court may imply a term to cover a
situation where the parties fail to provide theterm. The Court may also imply a term if its
necessary to give a contract a construction or
meaning that is reasonable. For example, if a
contract does not state its duration, the Court mayimply that the contract is to be performed or
continue for a reasonable time reasonable in
relation to the type of contract that it is. However, a
term will not be implied in a contract when the Courtconcludes that the parties intended for the contract
to be silent on a particular point.
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In every contract there exists an implied
covenant of good faith and fair dealing. Forexample, when a contract to purchase a
house is made subject to the condition that
the buyer can obtain financing, the buyer
must make a reasonable good faith effort to
obtain the financing or be held in breach of
the contract. The implied duty to act in
good faith means an honest, good faitheffort to satisfy the condition of the contract.
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As a general rule, a party is bound by acontract even if it proves to be a bad
bargain. However, if a court is called
upon to interpret a contract, if possible,the court will interpret it in such a way
as to avoid hardship, particularly when
the hardship would hurt the party whohad the weaker bargaining position.
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51/2004450/2004:
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:
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6651/2004:
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