Say what you mean

Prime Minister Theresa May has triggered Article 50 marking the start of two years of negotiations and, she says: "Brexit means Brexit.”

Everyone knows what that means, right?

Apparently not.

Each side is using the word as a platform to support its own views on what it actually does, and of course what it should mean.

The discussions, disagreements and ramifications look set to rumble on for months, if not years, to come.

But perhaps one thing we can all agree on is that Brexit doesn’t mean the same thing to everyone.

Parallels with contracts

The same problem can also arise in relation to contracts.

Parties enter into an agreement thinking they know what's agreed, and then find that actually, despite best intentions, they have very different views.

I’ve been reading a recent English case, Dooba Developments v McLagan Investments. One party had agreed to buy some land from the other subject to four conditions being met.

The contract they entered into allowed either party to walk away from the sale "if all of the conditions have not been discharged” by a particular date.

In the event, by that date, three of the conditions had been met, but one had not.

“All means all” shouted the purchaser – who wanted out of the deal – maintaining they could get out of the purchase as the conditions hadn’t all been satisfied.

“All means each and every condition,” said the unhappy seller, who wanted the sale to go ahead. In other words, all the conditions needed to be outstanding at the longstop date if the purchaser was to be allowed to get out of the deal.

And, as only one out of the four conditions hadn’t been fulfilled by the latest date, the deal should still have been on.

The court agreed with the latter in this case, and the unwilling purchaser was in trouble for walking away from the deal.

A call for clarity

At first blush, you might think this is one of those cases purely for pedantic lawyers.

The point to take from it, however, is that sometimes, even when you think you’ve said what you mean, there can be doubt.

And doubt leads to disputes.

Quite often in my job as a litigator, I am asked for advice where parties have fallen out about what they can do.

The starting point in contract situations is what they signed up to – be that in an exchange of letter, some more formal document or (gulp!) a handshake. Does that agreement set out the foundation for a complaint to be made?

It’s common to find terms under scrutiny that were most likely not given too much consideration when the parties were all friends.

Suddenly though, you find out a term you thought was clear may be capable of having more than one meaning. Or sometimes an agreement may just be silent on a particular issue.

Unless the terms are crystal clear, there is scope for argument. If the courts need to get involved there are various approaches that might be taken to interpretation.

We have seen that the courts have already been involved in the Brexit debate, and I’m not even going to hazard a guess at where that particular debate will land up.

But what is clear is that, if you want to avoid the possibility of having an argument about what a contract term means, the best protection is to constantly challenge whether you have actually said what you mean.

Simply put, if in doubt, spell it out, or risk potential dispute down the line.

An earlier version of this article appeared in the April edition of the Press and Journal’s the Leader publication.