# Language Mistakes in Law **URL:** \ **Category:** Factual Questions\ **Created:** [December 22, 2006, 9:14pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271 "2006-12-22T21:14:06Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![iano](https://avatars.discourse-cdn.com/v4/letter/i/9de053/32.png) [@iano](https://boards.straightdope.com/u/iano)\ **Post date:** [December 22, 2006, 9:14pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/1 "2006-12-22T21:14:06Z")
How common, if it occurs at all, is it for mistakes in how a contract or law is written or worded to be a factor in cases? ---
**Author:** ![Alive\_At\_Both\_Ends](https://avatars.discourse-cdn.com/v4/letter/a/73ab20/32.png) [@Alive\_At\_Both\_Ends](https://boards.straightdope.com/u/Alive_At_Both_Ends)\ **Post date:** [December 22, 2006, 9:31pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/2 "2006-12-22T21:31:05Z")
I’ve heard about a legal case involving a will which contained the words: À chacun d’eux cent mille francs. Which means “To each of them, a hundred thousand francs”. The two legatees to which this applied contested the will on the grounds that the apostrophe in _d’eux_ was actually just a tiny ink smudge, and the bequest should have read: À chacun deux cent mille francs. “To each, two hundred thousand francs.” They won their case and doubled their inheritance. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [December 23, 2006, 6:32am UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/3 "2006-12-23T06:32:28Z")
[QUOTE=iano] How common, if it occurs at all, is it for mistakes in how a contract or law is written or worded to be a factor in cases? [/QUOTE] There’s two issues there. First, whether there’s a mistake in a contract or law. Second, whether the parties later disagree about the meaning of terms in a contract. I don’t know how common it is, but these situations happen. Let’s start with a law: the Class Action Fairness Act, or CAFA. I posted about it [here.](http://boards.straightdope.com/sdmb/showthread.php?p=7581154&highlight=cafa#post7581154) When drafting CAFA, Congress clearly made a mistake, and courts have done their best to interpret CAFA. But that leads to an absurd result: by doing their best to effectuate Congress’s _intent_, the courts must do precisely what the language of CAFA forbids. As to the other situations, there are rules of contract interpretation that help to account for mistakes that the parties make when drafting the contract. And, in California, we also have the parole evidence rule, which permits parties to a contract to introduce evidence of what they meant by a particular contractual provision as long as their interpretation is reasonable. And, yes, to the law Dopers out there: California’s parole evidence rule is the precise opposite of the parole evidence rule everywhere else in the known universe. That’s what makes practicing in California so fun! ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [December 23, 2006, 6:53pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/4 "2006-12-23T18:53:55Z")
I think the consequences are less grave in civil law systems, i.e. systems which do not follow the common law tradition developed my English law. Civil law systems, which include most of Europe and Latin America, put less amphasis on the wording of statutes or contracts and allow for a wider margin for interpretation, even if this interpretation contradicts the pure wording. There is a famous case taught to every German law student about a will bequesting the testator’s “library” to someone. It was found out that the testator did not enjoy reading very much and in effect had owned a handful of books of little intrinsic value only. He had, however, sometimes referred to his valuable wine cellar as his “library” in joking. The will was construed to bequest the wine onto the legacee, not the books. There are also many examples of statutes which are commonly construed in a sense which clearly contradicts the wording in German law. Some of these instances are disputed, others are generally accepted. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [December 23, 2006, 6:56pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/5 "2006-12-23T18:56:34Z")
[QUOTE=Campion] And, yes, to the law Dopers out there: California’s parole evidence rule is the precise opposite of the parole evidence rule everywhere else in the known universe. That’s what makes practicing in California so fun! [/QUOTE] So in most of the world, you’re not allowed to present evidence supporting a claim you make as to what you meant by a contract provision? That makes it sound like California is the one sane place. And the sentence I’ve just typed is, on its face, absurd. So have I misunderstood? -FrL- ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [December 23, 2006, 8:42pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/6 "2006-12-23T20:42:44Z")
[QUOTE=Frylock] So in most of the world, you’re not allowed to present evidence supporting a claim you make as to what you meant by a contract provision?? -FrL- [/QUOTE] Essentially, assuming 3 things are true, this is correct. 1. By “the known universe”, Campion was referring, I think, to the 49 US states, and possibly other jurisdictions that are base their legal systems on English common law. She probably meant to exclude odd jurisdictions like Louisiana, (former Soviet) Georgia and Alpha Centauri. (Normal people never cite law from any of these places.) 2. The contract is written, not oral. 3. The contract is clear and unambiguous Reasons for the rule follow. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [December 23, 2006, 8:52pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/7 "2006-12-23T20:52:09Z")
The idea is to encourage putting contracts in writing, and to give some meaning to them. If people could enter into a written contract, that has clear terms, and then try to change its meaning when a dipute arises, what is the point of a written contract? Also, courts do not want to have to hear a bunch of conflicting testimony about what the contract means, every time it hears a contract case. It would mean more expensive and time-consuming court proceedings. Now, as I said, if the contract is unclear, or ambiguous, then the oral and other extrinsic evidence comes in. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 23, 2006, 9:34pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/8 "2006-12-23T21:34:37Z")
And if you don’t think that makes for very interesting bar exam (and law school Contracts law exam) questions… 😕 :o :smack: :dubious: ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [December 23, 2006, 10:16pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/9 "2006-12-23T22:16:44Z")
[QUOTE=Frylock] So in most of the world, you’re not allowed to present evidence supporting a claim you make as to what you meant by a contract provision? [/QUOTE] Post in haste, repent in leisure. Sorry. **Random** has it correctly: if a provision of a written contract is clear and unambiguous on its face, the parole evidence rule in most US states (by which I am expressly excluding Soviet Georgia, as I have only a passing familiarity with certain of its laws 😉 ) holds that a party may not offer evidence relating to what the parties intended by that contract provision. For example, if the contract says, “Payments must be made at 12 noon,” under the parole evidence rule of most US states, the parties could not put in evidence as to what that provision meant, because it’s unambiguous on its face. (If the provision said “Payments must be made at 12,” however, the parole evidence rule would permit extraneous evidence to show whether the parties intended “12” to mean noon or midnight.) In California, however, the parole evidence rule permits one to introduce evidence relating to the meaning of contract provisions that, on their face, are clear and unambiguous. For example, in California, one could put in evidence to show that “Payments must be made at 12 noon” actually referred to Greenwich mean time. Such evidence wouldn’t contradict the face of the contract, but would provide evidence that changes how one would read the contract. California: we’re not just strange, we’re legally strange. (And don’t get me started on how ex parte applications are anything but ex parte.) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 23, 2006, 10:26pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/10 "2006-12-23T22:26:48Z")
California parol evidence rule: > [@](#): > > 1. (a) Terms set forth in a writing intended by the parties as a > final expression of their agreement with respect to such terms as > are included therein may not be contradicted by evidence of any prior > agreement or of a contemporaneous oral agreement. > (b) The terms set forth in a writing described in subdivision (a) > may be explained or supplemented by evidence of consistent additional > terms unless the writing is intended also as a complete and > exclusive statement of the terms of the agreement. > (c) The terms set forth in a writing described in subdivision (a) > may be explained or supplemented by course of dealing or usage of > trade or by course of performance. > (d) The court shall determine whether the writing is intended by > the parties as a final expression of their agreement with respect to > such terms as are included therein and whether the writing is > intended also as a complete and exclusive statement of the terms of > the agreement. > (e) Where a mistake or imperfection of the writing is put in issue > by the pleadings, this section does not exclude evidence relevant to > that issue. > (f) Where the validity of the agreement is the fact in dispute, > this section does not exclude evidence relevant to that issue. > (g) This section does not exclude other evidence of the > circumstances under which the agreement was made or to which it > relates, as defined in Section 1860, or to explain an extrinsic > ambiguity or otherwise interpret the terms of the agreement, or to > establish illegality or fraud. > (h) As used in this section, the term agreement includes deeds and > wills, as well as contracts between parties. [WAIS Document Retrieval](http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=91253110042+1+0+0&WAISaction=retrieve) Good general overview of the parol evidence rule: [Error Page - Santa Clara University](http://scu.edu/law/FacWebPage/Neustadter/contractsebook/main/commentary/Parolevidence.html) Article on the parol evidence rule in CA: [http://www.manatt.com/newsevents.aspx?id=3974&folder=24](http://www.manatt.com/newsevents.aspx?id=3974&folder=24) ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [December 23, 2006, 10:40pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/11 "2006-12-23T22:40:05Z")
And for the record, it’s usually an uphill battle to convince a California judge that California’s parole evidence rule is what the law says it is. We all learned the majority rule in law school, and for many practicing attorneys, California’s parole evidence rule is a shocker when they actually look at it. Thanks for the cite, **G**. 🙂 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 23, 2006, 10:52pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/12 "2006-12-23T22:52:59Z")
[QUOTE=Campion] And for the record, it’s usually an uphill battle to convince a California judge that California’s parole evidence rule is what the law says it is. We all learned the majority rule in law school, and for many practicing attorneys, California’s parole evidence rule is a shocker when they actually look at it. Thanks for the cite, **G**. 🙂 [/QUOTE] My pleasure. 🙂 And yeah, the parol evidence rule is one of those that has accumulated so many exceptions over time, that the rule itself almost never gets applied. It’s pretty much the same here in Michigan, despite broadbrush language in some cases, like this one: [http://www.nysb.uscourts.gov/opinions/ash/95831\_2379\_opinion.pdf](http://www.nysb.uscourts.gov/opinions/ash/95831_2379_opinion.pdf); _and see_, [Page Not Available](http://www.icle.org/shared/asp/link_mlo.asp?cite=73%20Mich%20App%2012) (rule is in disarray). ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 23, 2006, 11:42pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/13 "2006-12-23T23:42:28Z")
But to get off the parol evidence hijack and answer the actual question asked (;)), the answer depends on how you define “mistake”. In increasing order of occurrence, in my experience, are: 1/ failure to include clauses that unambiguously guide the contracting parties in particular situations (ie arguably not a “mistake” as such, but probably poor drafting), leaving the parties to argue about what should happen by tenuous reference to other, marginally relevant clauses 2/ obvious error such as failure to fill out a pro forma in all respects leaving the parties to argue about what was meant to happen in the circumstance mistakenly not covered 3/ errors that everyone knows are errors but one party can argue was not an error, to gain an advantage (eg mistaken omission of the word “not”, and I’ve certainly seen that happen!) 4/ cute ambiguous language errors of the “eats roots and leaves” type. They all happen. I wouldn’t describe any as “rare”. I’ve argued all of the above at one time or other. I’d have several of 1/ on my books at any given time. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [December 24, 2006, 2:45am UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/14 "2006-12-24T02:45:20Z")
[QUOTE=Princhester] But to get off the parol evidence hijack and answer the actual question asked (;)), the answer depends on how you define “mistake”. [/QUOTE] But, but – what’s the parole evidence rule in Australia??? 😉 ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [December 24, 2006, 4:06am UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/15 "2006-12-24T04:06:43Z")
Interesting. I’d always seen it spelt “parol” but a quick google suggests either is acceptable (although “parol evidence” beats “parole evidence” by about 5:1 in a google fight). Anyhoo, basically it’s as per the rest of the US. I’m not sure from your example I get the distinction under Californian law. “Pay at 12 noon” is ambiguous as to timezone, so I would have thought that parol evidence would be admissable as to which timezone either way. I’m a solicitor, not a barrister. This evidence stuff isn’t stuff I have to know about 😉 Season’s greetings. ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [December 24, 2006, 12:41pm UTC](https://boards.straightdope.com/t/language-mistakes-in-law/385271/16 "2006-12-24T12:41:46Z")
If I may contribute another famous example every German law student learns. It’s a csse decided in the early 1920s. The parties concluded a contract of sale for a specified quantity of _haakjöringsköd_, which, so we learn, is the Norwegian word for shark flesh. Both parties, however, meant the word to mean whale flesh (I never really understood why they used a Norwegian word if apparently none of them knew Norwegian). The seller did deliver whale flesh, but according to German legislation at that time (it was during WWI when certain kinds of food were rationed), the cargo was confiscated. The buyer found out later that haakjöringsköd really meant shark flesh, and since legislation did not provide for shark flesh to be confiscated, he demanded delivery of shark flesh, arguing that this was what the seller owed him since this was what the word “haakjöringsköd” meant. The case went up to the supreme court in Germany (the Reichsgericht) at the time, and the court ruled dismissed the buyer’s claims since both parties meant whale when they concluded the contract. the fact that the word they used had a different meaning was irrelevant.