How breaking up text removes ambiguity

Breaking up the text not only makes documents easier to read but also removes ambiguity. Take this clause:

The Company has the exclusive right to operate and manage the business, to control production, to maintain order and efficiency, and to hire, classify, promote, transfer, demote, layoff and discipline or discharge employees for just cause.

Quite a mixture of thoughts here. But what do the words "just cause" refer to? No doubt to discipline and discharge, but also to demotions, layoffs, and transfers? A reformatting would remove the ambiguity. For example:

The Company has the exclusive right to

(a) operate and manage the business;

(b) control production;

(c) maintain order and efficiency;

(d) hire, classify, promote, transfer . . .?; and

(e) . . .(?) discipline and discharge for just cause.

Be careful with commas

Should a comma be used after the word "safety" in this example?

The Company must report on the performance of the work, health, safety and welfare of employees.

Does the clause require a report on		a report on
	work health safety welfare	or		work health safety and welfare

A lot can turn on that last comma - or its absence. To avoid ambiguity, include the comma after "safety" so that the obligation of the company is clear (assuming the intention is to have four reports). To omit the comma can confuse, to insert it will clarify.

The power of a comma was forcefully illustrated by Richard Wydick(5)

Maligned though it may be, punctuation can affect the meaning of an English sentence. Consider, for example, the (U.S. Constitution’s) fifth amendment’s due process clause. As punctuated by its drafters, it reads:

"[No person shall] be deprived of life, liberty, or property, without due process of law . . ."

Guided by the punctuation, our eyes quickly tell us that the phrase "due process of law" modifies the verb "be deprived". Thus, the fifth amendment requires due process if one is to be deprived of life, liberty, or property. But suppose the drafters had omitted the comma after "property". That would permit a lawyer to argue (in defiance of the provision’s long history) that "without due process" modifies only "property". Thus, the fifth amendment would forbid deprivation of property without due process and would absolutely forbid both incarceration and the death penalty. Such is the power of a comma.

Making lists

When using a list, make it clear whether the list is cumulative (by using "and") or whether the list is a series of alternatives by using "or" [or make the meaning clear by the lead-in words]. In this extract, does the employee have to meet both conditions before leave is granted or just one of them?

An employee may be allowed up to a thirty day leave of absence without pay for personal reasons if

(a) The employee requests it in writing at least 7 days in advance.

(b) The leave is for a good reason and does not interfere with operations, except in emergency situations when leave shall be granted regardless.

Should there be an "and" or an "or" at the end of clause (a)?

III. Problem words

Problems with time

Be careful with "from/to", "from/until" and "between" with dates and times

(i) If a right extends from 1 April to 8 May - does the right start on 1 April? Is it available on 8 May?

(ii) If a right extends from 1 April until 8 May - does the right start on 1 April? Is it available on 8 May?

(iii) If something must be done between 1 April and 8 May - must it be done on 1 April? Can it still be done on 8 May?

Instead of from/to; from/until; or between - use "after/before".

The right is available after 1 April and before 8 May, or say

The right starts on 1 April and must be exercised on or before 8 May.

The issue each time is: are the dates and times at the beginning and end of the time frame excluded or included - is it clear?

Problems with numbers

Does a clause saying

"A Safety Committee consisting of from 3 to 6 employees" mean that 6 employees can be appointed to the Committee?

What does a clause saying

"A joint committee of up to 4 members from management" mean?

Does "up to 4" also include 4? Although "to 6" and "up to 4" probably include "6" and "4" respectively, the meaning can be put beyond doubt by saying:

A safety committee consisting of at least 3 but not more than 6 employees.

A joint committee of not more than 4 members.

"Provided that", "providing", "provided however"

Provided that, providing, and provided however pop up in so many documents that they must be really precise legal words having well understood meanings. Right?

Wrong. They are sloppy, antiquated, imprecise and sometimes ambiguous words. The origins of provided that go back to the 13th century when the words provided that meant it is provided that this is our agreement or it is provided that this is the law.(6) Nowadays, the words are used variously to mean

• an exception
• a condition, or

• just another provision of the legal document.

Here is an example of two different uses of providing in one clause:

An employee . . . shall, upon her written request providing at least 2 weeks advance notice, be granted maternity leave . . . providing however that if . . . her ability to carry out her normal work assignments becomes limited . . .

The first providing is used as a condition on the employee obtaining maternity leave. The providing however looks like it is an exception. In fact it is quite a separate matter because it permits the employer, unilaterally, to place the employee on maternity leave in certain circumstances – it has nothing to do with the employee’s right to maternity leave. The first 3 lines could be rewritten along these lines:

. . . the Employer must grant a pregnant employee maternity leave if she gives the Employer at least 2 weeks written notice . . .

Here is another provided that example

Provided that the efficiency of . . . shall not in any way be disrupted . . . time off work without pay may be granted . . . for the following purposes . . .

This Provided that is used as a condition. It can be replaced with "If".

If a document does not make clear which meaning a provided that, provided however, or providing has, a dispute can lead to litigation.

The guiding rule is: Don't use "provided that" or "provided however" - use instead "except . . .", "if", or "but". Use "providing" with caution, but not as a condition or exception.

and/or(7)

A former Justice of the Supreme Court of Canada(8) once said this about "and/or"

"And/or" seems to be used by writers whose main concern is to appear erudite. In my opinion, quite the opposite impression is created. Use of this conjunction which is not a conjunction is repugnant to the spirit of the language, English or French.

Not only is the expression repugnant – it is ambiguous. It has caused litigation. The words "and" and "or" have quite different meanings. You might think that "and/or" means

A or B, or both

But several courts in the United States say "and/or" means the court can choose either "and" or "or", whichever the justice of the situation requires.(9) What would you make of this clause:

Sick leave means the period of time a permanent employee who comes under the terms of this agreement is absent from work with full pay due to bona fide sickness and/or injury that does not come under the Workers' Compensation Act.

Is the "and" in this clause necessary at all? But if every word used in a document is to be given a meaning, what meaning does and have?

Here is another example:

Time off from work without loss of regular earnings may be provided on the following basis:

(a) The Grievor and/or one (1) Union Steward for time spent in discussing grievance with representatives of the Employer as outlined in the Grievance Procedure.

(b) . . .

Does that mean

• the Grievor and the Union Steward get time off with pay, or

• either the Grievor or a Union Steward get time off with pay, but not both?

When there are 3 or more items connected by "and/or" the possible combinations become more complicated and the interpretation more uncertain. The only rule to follow is: never use and/or.

Definitions

Define words in legal documents only if they are to be used in exactly the same sense more than say, three or four times. Every time you use the defined word you should be able to substitute the definition in place of the defined word. If you cannot, the meaning becomes uncertain.

Use definitions only to define words. This sounds obvious, but many definitions in legal documents also deal with substantive matters. Substantive matters should come in clauses later in the document, not in the definitions. Keep testing your defined words - are they always used in their defined sense? If they are not, you are heading for trouble. Consider marking defined words with asterisks each time they are first used in a clause as a reminder to check for problems and to alert readers that the words have special meanings.