Friday, October 12, 2012

Ask them to explain what they mean.

In the Linkedin group Contracts Questions and Answers that I manage an individual asked for a plain English explanation for the following language in a section:

"Nothing in this clause shall not confer any right or remedy upon the Customer to which it would not otherwise be legally entitled".

Without seeing the wording used in its actual context it's hard to know what the intent is. For example, is “Customer” a party to the contract or are they a third party defined in the agreement. The general consensus from the parties that responded was whoever wrote it either 1) doesn't understand English very well as the language includes a triple negative, they don't proofread well, or (iii) they were trying to obscure their intent.

In David Munn’s response to the question he viewed the intent of the wording was to say: "No matter what rights the customer is given under this clause, the customer doesn't really get those rights unless the applicable law or something else in the contract gives the customer those rights." In other words, it could potentially negate all the rights and remedies given to the customer in the rest of the clause. That would clearly be an attempt to obscure the intent where the reader could think they are getting certain rights or remedies that they will not get.

Whenever you encounter language that is confusing to read, always ask the drafter what the intent of the language is. What are they trying to accomplish? Then make sure the language is written in clear and simple language that both parties understand. If needed provide an example to further clarify the intent. This is an example of qualifying language. Every time qualifying language is used in section of a contract it may be done to either limit or expand rights. For example:

If the Customer was a third party you could have language in the warranty section such as “Nothing in this Section shall confer any right or remedy to Customer that they would not be entitled under law.” This would prevent the buyer from passing contract rights or remedies in that section down to the customer. The only rights the end customer would have with the supplier would be what they would be entitled to under law.

If the Customer was the buyer you could have language that says something like “In addition to any rights or remedies in this Section, Customer shall have all rights and remedies available at law or in equity.” This creates and expansion of their rights.

If the Supplier was trying to limit the remedies they could say: ”The remedies set forth in this Section shall be the Customer’s sole and exclusive remedies.” This would eliminate any remedies that might have been available at law.

Never let confusing language or language with double or triple negatives into your contracts.

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