Corporate & Securities Law

More ?Or? Ambiguity

By Ken Adams

One of the chapters of MSCD that I sweated most over was chapter 10, “Ambiguity of the Part Versus the Whole.” Here’s the first paragraph:

Use of plural nouns and the words and, or, every, each, and any can result in ambiguity. In each case, the question is whether it is a single member of a group of two or more that’s being referred to, or the entire group, so this manual uses the phrase “the part versus the whole” to refer to this sort of ambiguity.

This topic is fiendishly complex, with the ambiguity varying depending on the grammatical context and the category of contract language that you’re dealing with. The literature on drafting has botched its treatment of this subject, and courts can be relied on to oversimplify it. When revising this chapter for the second edition, I bugged linguists and kept close at hand a copy of The Cambridge Grammar of the English Language. I’d like to think that the MSCD analysis is by far the most comprehensive and practical for purposes of understanding legal prose. (If I’m wrong, I’d like to know it!) But I’m looking forward to improving it for the third edition.

I feel a bit proprietorial about this topic, and I’ve revisited it sporadically in this blog, including in this May 2009 post about a Toronto restroom notice. I’m delighted to be able to revisit it again, thanks to this post by Neal Goldfarb on Language Log.

Neal’s post concerns a recent decision of the United States Tax Court regarding how cosmetic surgery is defined in the tax code. It’s defined as?

any procedure which is directed at improving the patient?s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.

The question presented was whether in order to constitute cosmetic surgery a procedure has to neither meaningfully promote the proper function of the body nor prevent or treat illness or disease, or whether not doing just one of those two elements is sufficient.

I’ll leave you to read Neal’s post for the gory details, but here’s my take: if you don’t want to find yourself in court haggling about, in Neal’s words, “disjunction under negation,” you should familiarize yourself with the sources of “the part versus the whole” ambiguity and root it from your contracts. The kind of ambiguity at issue in the Tax Court case is discussed at MSCD 10.42?44.

Incidentally, Neal’s an interesting fellow, in that he’s a lawyer who’s knowledgeable about linguistics. By contrast, I’m entirely unschooled in the subject?my approach is to try to figure out what sounds right, then hit the books to determine the linguistics underpinnings of my instinct. I’m sure I would have benefitted from a more formal education in the subject, but a saving grace is that my approach ensures that my analysis is rooted in the needs of drafters.

Full post as published by AdamsDrafting on February 18, 2010 (boomark / email).