Ambiguity: How to Avoid It

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.

There are many reasons why ambiguity occurs, but here are some of the main offenders:

(1) Use of a word which 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 following paragraph.
AND
There is a car following us.

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 either means 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:

Even if the company sells the product, if it does not usually sell this particular product in the usual course of business it cannot be held liable.

(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 pairs of sentences:

The judge said the accused was the most heinous villain he had ever met.
The judge, said the accused, was the most hei¬nous villain he had ever met.
AND
Woman without her man would be a savage.
Woman – without her, man would be a savage.

In the unpunctuated sentences above, the word order dictates the natural subject-object relationship. The judge and woman, respectively, are the subjects of the two sentences. The use of punctuation changes this around in both cases, thus creating radically different meanings.

The point to bear in mind is that punctuation is not just window-dressing used to makes 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 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 is considering throwing his partners into the drainage ditch.

The ambiguity in this sentence is caused by the sep¬aration 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:

My client has discussed with his partners your proposal to fill the drainage ditch.

Ambiguity and vagueness

Ambiguity should be distinguished from mere vagueness. Vagueness arises when the language used is imprecise or non-committal, and may sometimes be intentional (for example, in order to avoid giving a specific commitment on a particular issue). Here is an example:

We must do lunch sometime.


Rupert Haigh

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