More than Words: The Power of Language and its role in Contract Law and Legislation

Author:  Suzanne Chinner – BSc LLM MBA MRICS MCIArb

The Cambridge English Dictionary defines the term ‘Language’ as “a system of communication by speaking, writing, or making signs in a way that can be understood”.

In addition to being a tool to communicate, Language also has the power to create and unfortunately, to confuse.

The power to create

An excellent demonstration of the ability of Language to create, is the world-changing discovery of DNA. In 1953, two scientists named James Watson and Francis Crick proclaimed that they had “found the secret to life” when they discovered the double-helical structure of DNA and thereby cracking the code of genetic instructions for all life on earth.[1]

While DNA existed long before Watson and Crick’s discovery, it was their discovery of its structure and putting that into words, that brought the term to life. These scientists did not create DNA, but they did create access to it and in making the unknown known, only then could it be used and included as part of Language. After all, as pointed out by Souba in his research titled ‘The Language of Discovery’, “we can only deal with – understand, solve, evaluate – things we can talk about”. [2]

Language also often leads to confusion, as explored below.

The power to confuse

Language is the source of misunderstanding – Anton de Saint-Exupery

If words are the basic building blocks to Language, and words have pre-defined meanings, then why is communicating not more straightforward?

One problem lies in how we generate meaning. According to Crystal (2005)[3], the indirect and sometimes complicated relationship between Language and meaning can lead to confusion, frustration, or even humour. We may even experience a little of all three when we stop to think about how there are some twenty-five definitions available to tell us the meaning of the word meaning!

Words can have denotative and connotative meanings. Denotative meanings refer to generally accepted meanings or definitions, while connotative meanings are based on the interpreter’s association with the word or term.[4] In short, Language interpretation depends on various factors, including a person’s views, past experiences, education, background, etc. Perception and interpretation are also heavily influenced by an individual’s Weltanschauung (their world view).

My partner and I have very similar backgrounds, both culturally and professionally. We share the same values, have nearly the exact same qualifications and have been working together for more than a decade, often on the same projects around the world. Surprisingly, however, we often have different interpretations of words, terms or situations and therefore offer different proposed solutions to problems.

The meaning of a word also depends on the context in which it is interpreted. Context can be defined as a set of hidden and unchallenged assumptions that colour and shape our world and how we interpret and make sense of every piece of information. For example, hearing the word ‘shark’ while surfing could trigger a panic response, while hearing the same word used in a business context, perhaps to describe someone’s way of conducting business, would generate an entirely different meaning and response, although panic might still be appropriate.   

Interpreting (or Misinterpreting) Contracts and Legislation

As stated by DC Pearce and RS Geddes in their book on statutory interpretation:[5]

“Legislation is, at its heart, an instrument of communication. For this reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: ‘What message is the legislature trying to convey in this communication?”

There are several factors to consider in interpreting law and solving legal problems. In addition to simple logic, there are also further considerations such as tradition, history, sociology, and even morality.

As eloquently put by The Hon Justice John Middleton:[6]

The role of the courts is to apply and interpret Acts of Parliament in the resolution of controversies. Unfortunately, in some cases, the interpretation of legislation – whilst theoretically only capable of having one accurate meaning – often involves a long search to find that meaning.”

In gaining a better understanding of the complicated process of interpreting Language, it becomes clear how people can generate different meanings for the same words, creating confusion. Further confusion is also created by the cognitive bias known as the ‘False Consensus Effect’, which is described as the propensity to believe that one’s views, beliefs, values, etc. are shared by others. Essentially, this means that the false consensus effect leads people to assume that others think and act in the same way that they do, even when that is not the case (Effectiviology 2021).[7]

This is of particular concern and often seen in contract interpretation (or rather misinterpretation), where parties assume that they have similar interpretations of a clause, only to realise that the other party had an entirely different interpretation. As each party believes its interpretation to be shared, or to be the correct version, this misalignment of minds usually only becomes apparent when these misunderstandings escalate into disputes – disputes that likely could have been avoided.

Defined Terms in Contracts

Defined Terms in standard contracts are often overdone, to the extent that there are definitions of definitions which could have the reverse effect of what it is endeavouring to achieve – to add clarity and remove ambiguity. In other words they add confusion and potential for conflicts.

However, if definitions are drafted properly, clearly and succinctly (for example, definitions for ‘Works’, ‘Cost’ etc. in the FIDIC suite of contracts), they can be of great benefit in removing ambiguity from contracts. In one example, Aston Consult was involved in a multi-million Euro dispute which hinged upon the term ‘commissioning’. In this case, the supplier read it to mean regular commissioning of the machine. But this was a capitalised and clearly defined term in the contract, which had specific obligations and time scales, including penalties for missing certain milestones. The adjudicator found in favour of Aston’s client, rejecting the supplier’s interpretation.

Practical tips

Despite best intentions, those who draft contracts – similar to lawmakers – do not have perfect foresight to make provision for every contingency. The following simple steps can help to avoid some of the common pitfalls associated with drafting and interpreting contracts:

  1. Carefully review the proposed conditions of contract. Often experienced professionals assume that they know what a term or a clause means based on past experience. While past experience is certainly beneficial, it can lead the reader to an incorrect interpretation based on their own biases and it should not be a substitute for meticulously reviewing new contracts before clarifying and understanding the intended purpose of a particular clause before agreeing to the wording. Note also that many cases have been brought before the courts for a determination of meaning, therefore there could also be a legal precedent applicable to the meaning of a word in a certain context.
  2. Ensure the terms and conditions are relevant and appropriate to the specific project. For example, contractual clauses dealing with inclement weather may not be relevant in a contract where the works are being performed inside a structure or underground.
  3. Clarify any ambiguous terms or clauses before entering into the contract. Note that the contract may contain clauses which deal with how ambiguity is to be treated, such as order of precedence clauses.
  4. Ensure a fair, reasonable and balanced split of risks and responsibilities in the contract. Contracts should ideally be drafted to ensure that risks are appropriately allocated between parties. Traditionally, this means that risk should be borne by the party best able to manage it. However, this is not always the case which may result in claims or disputes when the risk eventuates.
  5. Consider enlisting the services of a professional with experience in preparing and interpreting contracts.
  6. If during the course of the works an event should arise that may result in a claim for additional time and / or money, then the issue should be communicated clearly and in accordance with the conditions of contract.

As discussed in this article, Language is not always a perfect medium of precise expression. While it is a useful tool to connect and communicate, it can also sometimes be the source of division and confusion. The simple tips above could assist in avoiding at least some miscommunications and the disputes that so often result from ambiguous conditions of contract.

Aston Consult provides commercial and contract management services and can assist with the preparation and review of contract terms and conditions. The Aston team also has extensive experience in dealing with disputes, including disputes which result from contractual issues. Our unique insight into the causes of conflict and disputes on construction projects enables us to assist in avoiding disputes and managing those disputes that cannot be avoided.

[1] Souba, W, The Language of Discovery, Journal of Biomedical Discovery and Collaboration (2011) 6: 53-69.

[2] Ibid.

[3] Crystal, D, How Language Works: How Babies Babble, Words Change Meaning, and Languages Live or Die (Woodstock, NY: Overlook Press, 2005), 8–9.

[4] University of Minnesota, communicating in the Real World – 3.1 Language and Meaning (2013), available at: 3.1 Language and Meaning – Communication in the Real World (umn.edu)

[5] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 146.

[6] The Hon Justice John Middleton, Statutory interpretation – Mostly common sense?, Melbourne University Law Review and Annual Lecture, 14 April 2016, available at: Statutory interpretation – Mostly common sense? (fedcourt.gov.au)

[7] Effectiviology, The False Consensus Effect: Why People Assume that Everyone Agrees with Them (2021), available at: https://effectiviology.com/false-consensus/

 

References:

  1. Souba, W, The Language of Discovery, Journal of Biomedical Discovery and Collaboration (2011) 6: 53-69.
  2. Crystal, D, How Language Works: How Babies Babble, Words Change Meaning, and Languages Live or Die (Woodstock, NY: Overlook Press, 2005), 8–9.
  3. University of Minnesota, communicating in the Real World – 3.1 Language and Meaning (2013), available at: 1 Language and Meaning – Communication in the Real World (umn.edu)
  4. DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 146.
  5. The Hon Justice John Middleton, Statutory interpretation – Mostly common sense?, Melbourne University Law Review and Annual Lecture, 14 April 2016, available at: Statutory interpretation – Mostly common sense? (fedcourt.gov.au)
  6. Effectiviology, The False Consensus Effect: Why People Assume that Everyone Agrees with Them (2021), available at: https://effectiviology.com/false-consensus/

2021-05-27T02:09:00+00:00 May 27th, 2021|Insights, News|0 Comments