Contract ?Busts'

• Author: Bryan A. Garner
• Pages: 22-23

Contract ‘Busts’

Trying to decipher provisions

that literally make no sense

By Bryan A. Garner

Transactional dr afting is a fascinati ng fi eld of study—

and of practice. There a re rigors on the one hand and luna-

cies on the other. The rigors involve accur ately achieving the

contracting par ties’ desired result, preferably i n a form they

can comprehend. The lunacies i nvolve using pastiche forms

riddled with w ildly inconsistent ways of expressi ng simple

duties, absurd archa isms whose purpose few lawyers c an

explain, and repel lent typographic practice s that still today

make many if not most contra cts grotesque to read.

What I’d like to explore in this colum n is the curiosity of

“busts”—the pr evalence of contrac tual provisions, s ometimes

perpetuated i n deal after deal, that ma ke no literal sense at

all. That they exi st at all is something of a marvel. A fter all,

you’d think that transact ional lawyers would adopt a pro-

tocol of reading a nd rereading each contract th at goes out

the door. Given that critical t hinking and close reading a re

prized habits for law yers, contradictory or outrig ht nonsensi-

cal provisions should be e xceedingly rare. Alas , they’re not.

Most experienced law yers can recall anec dotes of con-

tractual mon strosities. One involves a malpractic e claim

against a law fi rm: A mortgage had somehow be en prepared

in the early 1980s wit h a crucial line dropped. The sentence

made no sense. The fi rm had prepared dozens i f not hun-

dreds of mortgage s with the same language mis sing,

resulting in an inc omplete sentence that made little

sense—and the sense it did seem t o make resulted in

a disposition that no sane d rafter could have wanted.

It seems that a typis t had simply skipped a line and

continued typing. Nobody c aught the error—until a

problem erupted in the early 2000 s.

By that time, the fault y contract had long since

become entrenched as the “fi rm form.” A secreta rial

error from a generation before ha d become perma-

nently ensconce d in the form.

FLAWED FORMS

That’s one of the pratfalls that for ms, or precedents, en-

courage: a blind reliance on wha t’s “worked” before. Forms

often lull dra fters into a false sense of secu rity. If it worked

last time, it’s surely reli able. “Don’t touch a word of it,”

I’ve heard draf ters say. “It’s time-tested, a nd most of the

provisions h ave probably been litigat ed.”

This, too, is lunac y. As David Mellinko demonstrated in

his classic book The Lan guage of the Law (1963), litigated

forms typica lly have glaring problems in them. That’s usu-

ally why they fomented the litiga tion in the fi rs t place. Yet

for most of the 20th centur y, American legal publishers col-

lected “litigat ed forms” as if they were prized: The a mbigui-

ties within t hem had been adjudicated and settle d. Yet if, say,

the Arizona Supreme C ourt decides a contractual a mbigu-

ity one way, the California Supreme Cour t may decide it dif-

ferently, and the New York Court of Appeals even di erently

from the others. Al l because nobody simply redraft ed the

ambiguity to fi x the problem. Aft er all, if a redrafte d form

hasn’t been litigated, how cou ld it be recommended over

wording that had?

I once attended a lectur e by an expert on mechan-

ic’s liens. He cited a recent state supreme cour t’s

decision in which, in a cr itical provision, the court

held that shall meant may. (Such holdings are com-

mon, given the perva sive sloppiness with which legal

drafters u se the word shall.) After noting the deci-

sion, he emphatically recommended t hat all drafters

in the state would be well a dvised to use shall in this

provision because t hey know what it means there:

It means may. When I asked why draf ters shouldn’t

simply use may, he said he had no idea what that might b e

held to mean. Aft er all, it hadn’t been adjudicated.

This mindset lea ds to all kinds of perversions i n drafting.

WORD SWAPS

But then there are simple lapses in at tentive reading.

Lawyers oft en send me “busts” they encounter. Just last

week I received an e-ma il quoting this provision from a loan

22 || ABA JOURNAL DECEMBER 2018

EDITED BY KEVIN DAVIS,

LIANE JACKSON

“WHAT I’D LIKE TO EXPLORE IN THIS

COLUMN IS THE CURIOSITY OF ‘BUSTS’—

THE PREVALENCE OF CONTRACTUAL

PROVISIONS, SOMETIMES PERPETUATED

IN DEAL AFTER DEAL, THAT MAKE

NO LITERAL SENSE AT ALL.”

—BRYAN GARNER

PHOTO BY WINN FUQUA PHOTOGRAPHY

Bryan

Garner

on Words

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