When drafting an agreement, it goes without saying that you want to be as clear as possible. Despite this adage, I find myself reviewing agreements prepared by non-attorneys and also by attorneys that make little sense. Often, this goes unnoticed by all until there is a dispute and a litigator like me tries to figure out what occurred. When I wear my business attorney hat, I use this knowledge and experience to try to avoid potential problems. In some cases, I try to include a clause that states that both sides had a full and fair opportunity to have independent counsel review the agreement, that both sides participated in the drafting and negotiation of terms, and that any ambiguities should not be construed against either side as the drafter.
Here is a short summary of the law in New York about this –
In Rodolfo Mejia v. Trustees of Net Realty Holding Trust, 304 A.D.2d 627, 759 N.Y.S.2d 91, 2003 N.Y.App. Div. LEXIS 4019 (2d Dept. 2003), the Appellate Division, Second Department, summarized the applicable law regarding contractual ambiguities:
“Where a contract is ambiguous, “’parol evidence of additional promises’”
is admissible to complete the entire agreement (Laskey v. Rubel Corp., 303
N.Y. 69, 72, 100 N.E.2d 140 , quoting, 3 Williston on Contracts §
636, at 1830-1832 [rev ed 1936]). Parol evidence of the custom and
practice of the parties may also be admitted (see Lopez v. Consol. Edison of
N.Y., 40 N.Y.2d 605, 389 N.Y.S.2d 295, 357 N.E.2d 951 ).”
Where an agreement is ambiguous, it should be construed against the drafter. See,
International Marine Investors and Management Corporation v. John C. Wirth, Jr., 245 A.D.2d 544, 666 N.Y.S.2d 503, 1997 N.Y.App.Div. LEXIS 13346 (2d Dept. 1997).
If you have any legal questions or need help with drafting a contract or agreement, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.