Contracts are designed to bring clarity and structure to business relationships. Yet anyone who has revisited a contract years after it was signed knows that even well-drafted agreements can take on meanings no one anticipated at signing.
Most people assume contracts say what they say. Lawyers know better. A contract may look perfectly straightforward on Tuesday afternoon, only to reveal on Wednesday morning that it secretly contains three different meanings, two contradictory obligations, and a clause that suddenly seems to have rewritten itself.
Welcome to the world of contract ambiguity, where a single comma can start a dispute and the phrase “and/or” can launch a thousand billable hours.
So when does a contract not say what it says? The short answer: whenever the language allows more than one interpretation. The long answer: usually at the worst possible moment. Here are a few examples of how this issue appears in practice.
Ambiguity often hides in plain sight. A provision stating that “payment is due after delivery is complete” may appear clear, yet completion may reasonably mean physical delivery to a site, inspection and acceptance, or final installation. Each interpretation is plausible on its face, but each triggers payment at a different time.
Ambiguity also arises when provisions quietly conflict with each other. One clause may require performance “in accordance with industry standards,” while another demands “strict compliance with all specifications,” leaving courts to determine which obligation controls when those standards diverge. That determination may not align with either party’s expectations at signing.
And then there is “and/or.” A phrase intended to cover all possibilities, but which often creates more uncertainty than clarity. If a contract requires a party to obtain “approval and/or certification,” what does that really mean? Approval alone? Certification alone? Both? Either? Or all of the above, depending on the moment? Once a dispute arises, each side will confidently insist that their interpretation is the obvious one. Meanwhile, the court will wonder why this phrase exists at all when the English language already offers clearer alternatives such as “either” or “both.”
Once a judge decides a provision is ambiguous, the analysis shifts from “what did the contract say?” to “what did the parties intend?” This is generally the last place anyone wants to be. At that point, old drafts, emails, meeting notes, and memories that nobody planned to revisit become interpretive tools. The goal is to uncover the parties’ shared intent, but relying on recollection and context years later is inefficient, unpredictable, and expensive.
The better approach is to prevent ambiguity from sneaking in at all. Clarity is the best antidote. Define the terms that matter. Avoid compound phrasing that tries to be everything to everyone. Ensure provisions are consistent. Use examples when concepts get complicated. And whenever you find yourself typing “and/or,” ask whether you want the future litigators involved to start writing a novel about your intent.
A helpful test is this: Would a neutral reader with no context understand this sentence the way you intend? If the answer is yes, you have likely succeeded. If the answer is no, revise now rather than debate later.
Contracts work best when they say what they mean. When they don’t, courts must fill in the blanks, and the results may surprise everyone involved. A bit of precision at the drafting stage prevents a great deal of interpretation, and far more headaches, later.
If you would like help reviewing language for hidden ambiguity or eliminating potential misunderstandings, our team is here to assist. Thoughtful drafting on the front end ensures agreements perform as intended long after the ink has dried. Clarity is cheaper than interpretation.
For more information, contact Margo Kneisser at .
