Vail Daily column: What’s left unsaid
July 26, 2016
There are approximately 1,025,109 words in the English language. It is the richest of all languages — or, perhaps, simply the most verbose. For those of you keeping score, linguists cite Taki Taki, a Creole dialect spoken mainly in Suriname, as having the fewest, with a scant 350.
Presuming there are about 500 words on a standard written page, if we were to use all 1,025,109 English words in a single document without a single repetition, we would have to deforest a substantial copse of larch, pine or hemlock. Once more, for the scorekeepers among you, 1,025,109 words would take up 2,050 pages — the King James Bible is about 1,200 pages and the United States tax code is about 74,000 — but, of course, simply strung together, all 1,025109 words would make no sense. To have meaning, you would have to arrange them with their proper verbs, particles and adverbs. And to make it interesting, you would have to recruit a Shakespeare, Milton or Lahiri.
So it is little wonder that when an attorney drafts something as literarily insignificant as a contract, something must be left out. Even if he had the skill, time and interest toward including every word in the English language into a legal instrument — and someone had the mind-numbing doggedness to read and understand it — there would still be gaps. Similar to the twinkling lights on your Christmas tree, the effect is dependent upon precisely how you string the little gems together.
Words and combinations have meaning. For example, there is a subtle difference between sitting up and sitting down but both require sitting. And there is, perhaps, an even greater distinction between standing up and standing down.
What does this have to do with law? Two quick stories may shed some light.
Words relating to law
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Recently, I was dealing with a contract that provided that an item must be "used" only by specific persons. Merriam-Webster defines "use" as "the act or practice of employing something." To employ means "to devote to or direct toward a particular activity." In reading the agreement, we maintained that if the persons who were permitted to "use" the item sold it, that would be allowed as, in selling it, they would "direct it toward a particular purpose," to wit, the purpose of generating income. The other side bristled, "No, no," they said, 'use' means something different and does not include sale of the thing. 'Use' means, well… 'use.' If we wanted to say 'sale,' we would have.
Of course, the contrary argument is if they had wanted to exclude "sale" from the uses of the thing, they should have said so.
So far, it's a stalemate, awaiting further consideration.
The point is, though, that the author of the contract left something that turned out to be pretty important unsaid. The foregoing is, however, not to blame him. Something must always be left out or every legal instrument would span the length, complexity and sheer confusion of the IRS Code. And even that wouldn't solve the problem. Sometimes, complexity itself creates the problems.
When editing causes concern
In my second recent example, a client wanted me to look over an agreement before he signed it. I found many things unsaid, which three-plus decades of practicing law told me could spell problems down the road. I edited the document, making it narrower and more precise. But my so doing caused my client some concern.
"First," he said, "when I go to sell the property that is the subject of the contract, this sort of precision may make the issues I'm concerned about stand out to the future buyer and spook him. Second, by making things more precise, the guy on the other side of the deal may get scared and start making more demands."
I said, "But without these clarifications, you're leaving the door open to future interpretation and future conflict."
"I know but…"
Why don't we close that door and spell out the precise terms that relate to this particular matter?"
He hemmed. He hawed. He ruminated. And then he said, "I'll take my chances that he will be fair with me if it blows up."
I reminded him that he had come to me for my advice — advice he had sought occasionally, as deals came up throughout the past twenty years.
"I know," he said. "I just don't want to make it too precise."
So there it is; the lady or the tiger. Things are left unsaid, things said can lead to differing interpretations and things said can simply be too much of too much. Any way you slice it, honest differences and conflicts can arise.
As the Bee Gees once observed, "It's only words, and words are all
I have to take your heart away."
By the way, this column is more-or-less eight-hundred words. Unless in Taki Taki, I'm sure I must have left something out.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, firstname.lastname@example.org and email@example.com.
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