The Law Does Not Require Legalesea reassuring dive into contract interpretation
People think legal writing sucks because it has to. All the terms they see hurt their eyes and fog their brains. But all the lawyers seem to do it. It must just have to be that way. To be precise. Enforceable. Respectable. Something.
Wrong.
Courts do follow legal rules for reading contract terms. There are a bunch of them. But the most important ones all say exactly the opposite. They say your language rules, not ours.
Plain Meaning
The most important concept for interpreting contracts is “plain meaning”, sometimes called “ordinary meaning”. “Plain” and “ordinary” mean what you think here. No surprises.
Here’s the rule in California, which has it spelled out in its civil code:
The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.
Don’t think “technical sense” is any gaping loophole. The very next section:
Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense.
Ordinary words, popular meaning. So much for mandatory lawyerspeak.
Intent at the Time
Plain meaning is a tool, a tactic. For what? Under the law, a court’s job is clear: figuring out what both sides meant by the words they chose.
Again from Cali’s code:
A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.
Notice what’s missing here: any mention of lawyers. The question is what the parties intended, not what their lawyers intended. After all, there may not have been any lawyers. Lawyers aren’t required to make contracts. Lawyers are just there to help. Hopefully.
But notice what is mentioned above: timing. Courts ask what both sides meant back when they agreed. Not what they say they meant now, when they’re in some lawsuit fighting each other about it. If we ask them now, they’ll say the contract meant whatever wins them the case.
Plain meaning and parties’ intent are the core of contract interpretation. If you were going to sum up contract interpretation in a couple hundred words, these are the phrases you’d absolutely have to mention.
I am feeling long-winded all of a sudden.
History
There are more rules, of course. The whole contracts part of the California civil code is worth skimming—fairly quick and easy to do. If you do skim, keep an eye on the notes below the sections, which work a bit like legal git blame:
1635. All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by this Code.
(Enacted 1872.)
Fun Fact: All the language I’ve quoted so far was passed in 1872. You could probably tell the sentences felt a bit stodgy. But they were also relatively manageable, with just one sentence per section. The endless run-on sentences and (a) imposing (b) enumerated (c) lists came later. No further comment.
Tuning
Setting aside the new carve-outs for specifics kinds of contracts—sales tax reimbursement, heavy equipment rentals, real estate sales—we can spot two themes running through the general sections. First, where there’s a gap in what a contract says, the law tries to fill in what most would probably expect there. Second, the rules help keep the lawsuit process workable.
In California, the most important process defenses read like this:
When a contract is reduced to writing [written down —KEM], the intention of the parties is to be ascertained [figured out —KEM] from the writing alone, if possible…
The whole of a contract is to be taken together, so as to give effect to every part, is reasonably practicable, each clause helping to interpret the other.
Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.
More 1872? You bet.
In modern English: When a contract’s written down, try to decide what it means just based on the terms. All of them in context, not just snippets. If several contracts were part of one big deal, read them all together.
In legalese, for nerds going deep? Search “parol evidence rule”, name from old Law French. Then try “four corners”.
Implementations and names aside, what do these rules do, functionally? They restrict the evidence we can use to argue intent.
Ruling evidence and arguments out of bounds risks excluding something important. We could imagine situations where a court could need something beyond the terms alone to truly understand what was meant. But just as we can expect both sides of a contract lawsuit to argue whatever meaning wins for them, we can also expect them to drag in literally whatever they think helps their case.
This would make it hard to know for sure what you agreed to looking back, since you’d need not just a copy of your contract but records of whatever else the other side might use to try and bend or break them. It would also turn contract lawsuits into even longer, more expensive, less well bounded slug fests, which could easily gum up the courts.
Actually, that’s kind of California’s rep on contracts cases. It has the same basic legal rules as most other states, but its courts are somewhat more willing to hear about fraud, deceit, and other exceptions that undermine written terms. Court backlogs are crazy. If you’re playing for literally all the points in this blog post, try to point out the civil code section that heavily foreshadows this turn of legal events.
Write the Future
California being California aside, we’ve seen general contract rules sacrifice some accuracy so we can know what we agreed to or fight it out in court relatively quick. This trade-off, not any quizzical dictate to write like a whole shelf of hornbooks fell on your head in a law library, accounts for the inherent specialness of contract terms.
Words in contracts bear more weight. Not just because they describe what someone else—a court—ought to do, but because of the rules those courts have for reading them. Terms can’t rely on readers to fill from context, mine personal history, or interrupt with clarifying questions, like a good friend texting on a Thursday night. Contract words must be sturdy and stand on their own. Not sound older. Not be “settled”. Not seem fancy somehow, like they’re wearing tiny black Oxfords on all their little serif feet.
Load-bearing, free-standing writing is hard brain work no matter whose brain does it. The skill of a good contract lawyer lies in doing it a lot, writing as clearly and completely as possible where the effort serves the client.
Judging what to cover and when it’s worthwhile is more than half the game. It takes knowing the business, the deal, the industry, often way more than the law. The law usually matters most through its defaults: what courts will fill in on their own if you don’t cover it. And, occasionally, for remembering what you can’t say, because it’s illegal. Not how to say all the things that are enforceable. You can say those in English and the jargon of your field.
Facing Imperfection
Even with the best drafting help, sometimes it’s just not clear what terms meant or how to apply them. It’s also normal and common to intentionally leave some points vague, or leave them out entirely, when pinning them down could delay or kill a deal. And sometimes terms that seemed totally predictable one day become utterly ambiguous when applied to some new situation. Nobody sees the future, but everyone writing contracts is trying to boss it around a little.
There are rules for vagueness and ambiguity, of course. More about who can argue what, and how. If all else fails, there are even some deep fallbacks, like interpreting wonky language against the side that wrote it. But focusing on those exceptions is a bit like Googling brain surgeries when you could be buying a helmet. The clearest, most reliable way to avoid some judge going haywire on you is to write out what you want clearly and get the other side to sign off on it.
For the record, the worst way is writing what you mean in affected lawyerish, which is how sad French clowns would talk if they weren’t also mimes. Second worst is expecting some lawyer to read your mind, then paying them to write it down in language you can’t understand.
My law school barely had a class on contract drafting. If they could read minds, they’d never ask me for a dollar.
Moral?
Expect better from lawyers. We’ve been glazing eyes ahead of sharper minds than ours for many generations. But only because we’re lazy and insecure as the rest of you, and you let us.
Please stop. We shovel this shit all day.
Your thoughts and feedback are always welcome by e-mail.