V.31. G. Construction Against The Draftsman

• Jurisdiction: New York

g. Construction Against the Draftsman

The principle of construction against the draftsman provides that an ambiguous agreement must be construed against the party who prepared it and in favor of the party who had no voice in its preparation.³⁹¹ The principle is a rule of last resort. It should be applied only when the parties’ intent cannot otherwise be gleaned from the agreement and after all other aids to construction have been employed but have failed to resolve the ambiguity.

The principle has been applied primarily in two circumstances. First, when an ambiguity exists in a standard form contract supplied by one of the parties, the principle requires that the ambiguity be construed against that party. For example, insurance policies will be construed strictly against the insurer and in favor of the insured. The second situation is where a contract is formed by offer and acceptance. If the offer is ambiguous, the court will construe the contract to reflect the meaning the accepting party gave to the ambiguous language.

The principle of construction against the draftsman should not be controlling a negotiated contract between sophisticated business entities with relatively equivalent bargaining power. The rule has little purpose in connection with such a negotiated contract. The underlying rationale for the rule (to put the burden of ambiguity on the party preparing the form or offer) is not present in a negotiated business contract. When both parties participated in negotiating the agreement and crafting its terms, the meaning of contract language...