Legal Research

Contra Proferens

By Simon Fodden

The Register directs our attention to a recent case from England, Oxonica Energy Limited v. Neuftec Limited [2008] EWHC 2127 (Pat), in which a talented but testy Deputy Judge slowly removes strips of the skin of a person who drafted the contract under review. Peter Prescott, a highly respected litigator and someone with a masters degree in physics, opens his judgment with:

How do we interpret a formal commercial agreement if it is ambiguous and we have reason to believe that its draftsman did not have a deep understanding of the relevant law? I think that is what this case is about.

From the drafter’s perspective, it goes downhill from there, occasionally in French (”Ce que l’on conçoit bien s’énonce clairement et les mots pour le dire arrivent aisément.“), rather more often in Latin (”verba fortius accipiuntur contra proferentem” “ambiguitas contra stipulatorem andambiguitas contra venditorem“) and always with that measured, assured, and learned tread that marks the best British judgments but somehow leaves you with sweaty palms and a desire to take up agriculture.

This is, I suspect, a case worth reading by those interested in the interpretation of contracts, and the judge’s warnings about banging together pieces of boilerplate in a word processor are well worth heeding by everyone.

“[The document] conveys an impression that [the draftsman] was not always clear in his own mind about what he was doing and, when not clear, allowed his word processor to do his thinking for him. Bits of legal phraseology have been lifted from I know not what precedents and assembled in a strange way.”

Ouch.

Full post as published by Slaw.ca on September 12, 2008 (boomark / email).