When drafting agreements, it is common practice to include a provision stating that the agreement will not be construed against the drafter. This provision is known as the “anti-contra proferentem” rule and is based on the principle that the drafting party should not be penalized simply for being the one who put the agreement in writing. Instead, the rule puts the burden on the other party to understand the terms of the agreement before signing it.
However, this provision is often misunderstood and misused by drafters. In some cases, it is included simply as a boilerplate provision without any thought as to how it applies to the specific agreement being drafted. In other cases, it is used as a shield to avoid liability for ambiguous or unclear language in the agreement.
The anti-contra proferentem rule is not a license to include vague or misleading language in an agreement. Drafters are still responsible for ensuring that their agreements are clear and unambiguous. If there is any doubt as to the meaning of a provision, the rule should not be used to avoid responsibility for clarifying it.
In fact, the rule can actually be detrimental to the drafter in some circumstances. If a court finds that a provision in the agreement is ambiguous or unclear, it will usually be interpreted against the drafter regardless of the anti-contra proferentem rule. This is because the rule is based on the assumption that the parties have equal bargaining power and legal knowledge, which is often not the case.
In order to avoid ambiguity and confusion, drafters should take care to use clear and concise language in their agreements. If there is any doubt as to the meaning of a provision, it should be clarified before the agreement is signed. This will help to avoid disputes and litigation down the line.
In conclusion, the anti-contra proferentem rule is an important provision to include in agreements, but it should not be used as a shield to avoid responsibility for drafting clear and unambiguous language. Drafters should take care to ensure that their agreements are clear and concise, and should clarify any ambiguous provisions before the agreement is signed. By following these guidelines, drafters can ensure that their agreements are enforceable and stand up to legal scrutiny.