8 What to avoid
Ambiguity occurs when writing can be interpreted to mean more than one thing, and these things are in conflict with each other.
You can often get away with this in ordinary English if one meaning seems more likely than another. In legal English – especially in contract drafting – it can be disastrous. Anglo-American lawyers still take a literalist approach to construction – i.e. contract words are interpreted according to their literal meaning rather than according to the purpose and effect that can be presumed from the context. A slightly ambiguous piece of phrasing may end up costing thousands of dollars.
There are many reasons why ambiguity occurs, but here are some of the main offenders:
(1) Use of a word that has more than one meaning in the context
Many English words have a number of different meanings depending on the context in which they are used. This is a natural feature of the language. Take, for example, the word following in these sentences:
Please refer to the followingparagraph.
There is a car followingus.
It can be seen that the meaning of the word is very different in each sentence. However, this is not a problem because the context tells us which meaning applies. In the first sentence, the ‘following paragraph’ means the next paragraph. In the second sentence, ‘a car following’ means a car in pursuit (i.e. behind ‘us’).
Sometimes, however, the context does not clearly indicate which meaning applies. Consider this piece of legal verbiage:
Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it may not be held liable.
The problem here is may, which either refers to a possibility (e.g. ‘I may go for a swim today, or I may not. It depends on how I feel later’), or to an entitlement (e.g. ‘The purchaser may inspect the goods at the seller’s warehouse’). So, depending on how one reads this sentence, it means either that there is a possibility that the company will not be held liable or that there is no entitlement to hold it liable. Neither of these options makes perfect sense and each is in conflict with the other.
The solution is to turn may not into cannot. Thus:
(2) Unclear pronoun reference
The use of pronouns is an excellent way to avoid clumsy repetition of nouns, but this technique can result in confusion if carelessly handled. For example:
John drafted the contract for the client during the meeting itself and he then read it through carefully.
The problem here is that since we don’t know the gender of the client, the he referred to in the sentence may either be John or the client.
The key issue, obviously, is to ensure that it is clear which noun each pronoun is supposed to replace. If there is a possibility of doubt, use a proper noun instead. For example:
John drafted the contract for the client during the meeting itself and the client then read it through carefully.
(3) Poor punctuation
Punctuation can have a drastic impact on the meaning of a sentence. Consider these two sentences:
The judge said the accused was the most evil man he had ever encountered.
The judge, said the accused, was the most evil man he had ever encountered.
In the unpunctuated sentence above, the word order dictates the natural subject–object relationship. The judge is the subject of the sentence. The use of punctuation changes this around to create a radically different meaning.
The point to bear in mind is that punctuation is not just window-dressing used to make sentences look tidy. In many cases it can dictate the meaning of the sentence – and should therefore be used with great care.
(4) Separation of parts of a verb phrase
The meaning of English sentences can in many cases be changed completely by altering the word order. For example:
My client has discussed your proposal to fill the drainage ditch with his partners.
This sentence probably means that the client has discussed with his partners the proposal to fill the drainage ditch – but it is capable of being interpreted to mean that the client has discussed throwing his partners into the drainage ditch.
The ambiguity in this sentence is caused by the separation of the verb phrase ‘discussed with’ from its object (‘his partners’). By reuniting these parts of the whole phrase the real meaning of the sentence becomes clear:
Rewrite the sentences in the online exercise to make their intended meaning clear and unambiguous.
8.2 SEXIST LANGUAGE
8.2.1 Personal pronouns
It is considered inappropriate in modern legal and business English to use the personal pronouns he or his or she or her to refer to a hypothetical person whose sex might be either male or female – for example, one introduced by a genderless title (e.g. the buyer, the manager, the lawyer).
To some extent this problem can be avoided by using one or more of the genderneutral pronouns and adjectives set out below.
• no one
However, these words do not get us terribly far. The main problem is that English, unlike a number of other languages, has no gender-neutral singular personal pronouns (except one, which is too formal and abstract for most situations encountered in practice).
A good workaround is to use the plural possessive form their even when writing about a single person. Although this is not strictly logical, the Oxford English Dictionary 2001 permits the use of this form as ‘belonging or associated with a person whose sex is not specified’.
In this way, the writer can avoid using sexist language. For example, instead of writing:
Every competent lawyer must ensure that his legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
• Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’: delete to him.
• Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to ‘the sales representative assisted the customer with the order’.
• Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ can be changed to: ‘the finance officer who does not pay attention to detail is worse than useless’.
• Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should …’
• Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
• Use the infinitive form of the verb, including ‘to’ (e.g. ‘to perform’, ‘to draft’, etc). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.