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O P I N I O N
Say what!?
If you’re a firm owner or design professional, don’t leave contractors guessing. Using plain language, make your intent clear to avoid disputes, change orders, and claims.
T here have been some funny T-shirts that say, “Let’s eat, Grandma!” and “Let’s eat Grandma!” with the caption: “Punctuation Saves Lives!” This shows that the same words can have two meanings, known in legal circles as an ambiguity. When an ambiguity appears in a contract or a set of specifications, courts apply a rule that says the document is “construed against the drafter.” This means that the person who drafts a document (contract or drawing) has to make his or her intent clear, and not leave the reader guessing at the intent. The legal name for this rule is “contra proferentem,” Latin for “against the offeror.”
William Quatman
WHEN TO APPLY THE RULE? Under this rule, ambiguities in a contract, a set of specifications, or a drawing can be interpreted against the author (the “draft- er”) and in favor of the other party’s reasonable interpretation. The concept is that the person or entity drafting the document should not require the other party to speculate as to its meaning. Construction contracts between the government and private contractors are subject to this legal rule to resolve ambiguities. A court’s task in such contract cases is to construe a contract “to effect the parties’ intent” at the time they executed the contract. If, however, the court is unable to in- terpret a contract based on its express terms, an ambiguity may be resolved by looking to – in order of preference – course of performance, course
of dealing, and common trade practices. If all of these approaches fail, the rule of contra proferen- tem is applied as a “rule of last resort” to construe the ambiguity against the drafter. WHEN IS A CONTRACT AMBIGUOUS? When one party ar- gues that the contract is ambiguous, courts apply three primary rules of contract interpretation. First, the court begins with the actual language of the written agreement. In this step, words are given “that meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circum- stances.” This means considering the context and intentions of the parties rather than just a diction-
See WILLIAM QUATMAN, page 12
THE ZWEIG LETTER April 22, 2019, ISSUE 1293
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