Published on March 20th, 2018 by Alan L. Sklover
“Close your eyes to see clearly.”
– Ancient Zen Saying
ACTUAL CASE HISTORIES: Something I have learned over decades of being an attorney is that the law is mostly common sense, a kind of practical wisdom, applicable to different situations, handed down from one generation to the next. Despite the many, varied and often deserved criticisms of the legal system, overall, it works. I believe that more each day.
Here is an illustration: If a contract provision seems unclear, then Courts will, as a general rule, interpret that provision against the interests of the party whose lawyer drafted it. This is referred to as the “Interpretation Against the Drafter Rule” of contract analysis.
What is the common sense underlying the “Interpretation Against the Drafter Rule”? It rewards clear contract drafting, and punishes lazy or sleazy contract drafting, so that, hopefully, there will be fewer controversies over what contracts mean, and less need for the time, attention and costs of attorneys and Courts. This is a good example of common sense, applied to a common problem, in the common interest.
To get around the “Interpretation Against the Drafter Rule,” some lawyers insert a clause into the contracts they draft that provides, in effect, “The parties agree that no one party drafted this contract, but we both contributed to it, and, so, the ‘Interpretation Against the Drafter Rule’ doesn’t apply to this contract.” This kind of clause, most often called an “Ambiguity Clause,” is nothing more or less than an attempt to evade the “Interpretation Against the Drafter Rule,” and thus accountability for their sloppiness or sleaziness. The Ambiguity Clause seeks to take away risk of the consequences of ambiguity from the shoulders of the drafter, and place it on the shoulders of the non-drafter.
Since most workplace agreements are drafted by employers’ lawyers, and not by employees’ lawyers, Ambiguities Clauses are especially common in workplace agreements. Thus, it is wise for employees and their lawyers to watch out for the Ambiguity Clause, and to consider taking certain precautions to address the additional risk it represents.
LESSON TO LEARN: This is what a typical “Ambiguity Clause” looks like:
- “Ambiguities: The parties agree that this agreement was drafted by the lawyers for both parties, and so neither party can be alleged to be the primary drafter. Accordingly, any rule or law of contract interpretation that would require interpretation against the interests of one of the parties is inapplicable when interpreting this agreement, and in all events.”
Here is another common version of an “Ambiguities Clause,” with a different title:
- “Construction: The parties acknowledge and agree that any statute, principle, or rule of contract construction that requires that ambiguities are to be resolved against the drafting party, shall not be employed in the interpretation of this Agreement.”
If you notice an “Ambiguities Clause” in any workplace agreement you are being asked to sign, now you know what it means, and you are aware that it being there leans a bit against your interests, and so you are well-advised to be on guard a bit more than usual for ambiguities in the agreement, before signing it.
WHAT YOU CAN DO: If you are considering signing a workplace agreement of any kind, it is always prudent and wise to read it over carefully before you sign it. If it contains an “Ambiguities Clause,” be even a bit more cautious. If you notice an “Ambiguities Clause” in the agreement under your consideration, here are some ideas, tips and thoughts to bear in mind:
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