![]() The parties argued about only the third instance of potential ambiguity, but eliminating all potential ambiguity would have made life easier for the reader.Īs regards the language in dispute, if I were providing expert-witness testimony, I’d limit it to specifying whether the language exhibits syntactic ambiguity. So the definition could conceivably have eight different meanings. … minus (D, E or F and G, and H) or … minus (D, E or F and G), and H.… minus D, (E or F) and G … or … minus D, E or (F and G) ….… A minus (B and C), minus (D … ) … or … A minus (B and C, minus D … ) ….The three sets of possible alternative meanings are shown below consistent with mathematical convention, the operations within parentheses are performed first (noted in brackets are relevant sections of MSCD): The definition contains three instances of potential syntactic ambiguity, each caused by uncertainty over the order of operations. “Net Sales” equals A minus B and C, minus D, E or F and G, and H. If you strip down the formula, using “equals” instead of “which is”, using “minus” instead of “less” and “excluding”, and replacing the individual values with letters, here’s what you get: ![]() It’s essentially a formula expressed in prose. Whether potential ambiguity results in actual ambiguity depends on how the potential ambiguity relates to other elements of the provision.Ĭonsider the language at issue. The court ruled that the expert’s testimony was inadmissible.Ī sentence can exhibit potential ambiguity. PODS initially responded by saying that the definition of Net Sales was “patently ambiguous, and was the result of a scrivener’s error and mistake.” But it subsequently submitted expert testimony to the effect that “monies received as part of the cross country move program” should be included in Net Sales. The royalties and shall be calculated on the “Net Sales”, which is the total revenue as shown on the “Sales by Item Summary-Complete Summary”, excluding sales tax and insurance as explained above, less discounts, credit memos or adjustments and bad debt expense, and monies received as part of the cross country move program, which are distributed separately on a monthly basis and not included in this summary.Īccording to the plaintiffs, “monies received as part of the cross country move program” were specifically excluded from Net Sales. The franchise agreements’ definition of Net Sales is a mess: Under the franchise agreements, the plaintiffs were required to pay PODS a monthly royalty fee equal to a percentage of the franchisee’s “Net Sales.” PODS is a franchisor of storage and moving businesses. The case involves a dispute over franchise agreements that the three plaintiffs entered into with defendant PODS. District Court for the Northern District of Georgia in Coyote Portable Storage, LLC v. This all came to mind when via reader I learned of this post on Roetzel & Andress’s Franchise Follow-Up blog. (For more on that, see this June 2009 post on the AdamsDrafting blog.) But a court is very unlikely to allow expert testimony on other kinds of ambiguity, given that they’re easier to grasp, so there’s little point in my offering such testimony. (Arbitrations and other noncourt proceedings are a different matter.) I’m nevertheless willing to offer expert testimony on syntactic ambiguity and ambiguity of the part versus the whole-courts routinely flub that kind of analysis, so it makes no sense to prohibit expert testimony on the subject, and I think that I could get a court to agree with me. Why make this distinction? Caselaw supports the proposition that no expert testimony is admissible for purposes of determining whether contract language is ambiguous. Instead, assuming that my analysis would be helpful, I’ll offer to act as a consultant, leaving counsel to present the arguments. If I’m asked to submit expert testimony to a court on any other topic, I’ll likely decline. MSCD chapter 10 covers this kind of ambiguity. It includes uncertainty over the meaning of and and or. Ambiguity of the part versus the whole-that’s my term for uncertainty over whether in a given provision a single member of a group of two or more is being referred to, or the entire group.And I’ve blogged plenty about the subject, including here. ![]() ![]() MSCD chapter 11 explores syntactic ambiguity, and chapter 11 (Numbers and Formulas) includes a discussion of syntactic ambiguity in formulas.
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