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Construing against the Drafter? (Common Clauses)

Updated: Dec 19, 2023

(This post is part of a series called “Common Clauses,” focused on explaining so-called boilerplate provisions of contracts. Click the link to see other posts in this series).


What is it?


"This Agreement shall not be construed against either party as though one particular party had drafted it, but shall be interpreted as if both parties had prepared it."


I'm going to call this a "construction clause," in this post (though the term "construction clause" can mean other things in other contexts). The purpose of a construction clause is to counter the interpretive maxim of contra proferentem. “Contra proferentem” is a Latin term meaning “against the person submitting ” (my humble translation).


What is contra proferentem?


Contra proferentem is a legal approach for resolving ambiguities. If a contractual term is ambiguous, the ambiguity will be resolved against the party who drafted the contract.

As an example, a landlord rents a 300 sq ft space to a tenant. The landlord drafts the rental agreement. In Paragraph One, the rent is set at $2,500.00 per month. In Paragraph Two, the rent is calculated as $10 per square foot ($3,000.00 per month). Assume, for this example, there are no other terms. Which amount controls?


Here, the tenant will argue that the rent should be $2,500.00 per month, the landlord will argue $3,000.00. Because the landlord drafted the lease, the ambiguity will be resolved in favor of the tenant.


It's a simple concept. The rationale is that, if you draft the contract, any ambiguities should be interpreted against you and in favor of the other party. If you’re the one drafting the contract, then you have the last opportunity to fix these issues, or to make absolutely certain that they don’t happen in the first place. The concept dates back to common law, so it might well be the controlling interpretative approach in your jurisdiction.


Why include a construction clause in the contract?


The party that drafts the contract will almost always want a construction clause in the contract (the non-drafting party would generally prefer its exclusion). If there is an ambiguity, the drafter does not want the ambiguity construed against them. That party will want to have a chance to present evidence that their interpretation should hold.


Several states have codified contra proferentem. That means that it is the default approach to contract interpretation. If you are drafting a contract, bear in mind that your state may well interpret any ambiguities against you. And the longer or more complex the contract is, the more likely there are to be ambiguities.


What does state law say?


California has codified contra proferentem. "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." Cal. Civ. Code section 1654. California law could not be clearer.

Although Texas has not explicitly codified contra proferentem, it has long been used by Texas courts to resolve ambiguities. For example, the Texas Supreme Court has held that "…a writing is generally construed most strictly against its author and in such a manner as to reach a reasonable result consistent with the apparent intent of the parties." Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793 (1984).


Conclusion


Construction clauses can be necessary to avoid contra proferentem. If you aren't drafting a contract, it makes little sense to request a construction clause. But when drafting a contract, it makes little sense not to include a construction clause.

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