Given the doctrine of Contra proferentem wouldn&#39;t it be better for the non-drafting party to not point out ambiguity? This question is a follow up to If a party says something about interpretation of contract, is it binding? Since courts usually interpret an ambiguous term in the favor of the party that did not draft it, why would the non-drafting party want clarification? If the party that didn't draft the term gets the benefit of the doubt, wouldn't it make more sense for him not to point out any ambiguities and to not ask clarifying questions before agreeing? Am I looking at this right?
Because disputes are expensive, time-consuming and generally not fun An ambiguous term is a dispute waiting to happen. Far better to resolve the ambiguity and correctly allocate (and price) the risk at the start of a contract when nothing is at stake then have that term be at the centre of a dispute with $10 million on the table that both parties think is theirs. At best, a dispute strains the relationship, at worst, it involves time and costs putting the matter before an arbitrator or a judge and hope the resolve the ambiguity your way. I prefer to play roulette at a casino not a courtroom. Contra preferentum is unlikely to be a successful argument in any form of non-determinative dispute resolution - essentially the proffering party is never going to agree that it applies. Further, contra preferentum is a last-resort resolution mechanism. Maybe what you read as ambiguous is actually clear. Or clear in context, or clear when industry norms are considered or when past dealing or current dealings between the parties are considered. Relying on it is a real long shot. Also, almost all B2B contracts explicitly exclude contra preferentum as a method of resolving ambiguous terms.
No Only the ratio decidendi of a case sets binding precedent. By definition, that has to be in the decision of the court’s majority because that’s what decided the case. If a minority decision disagrees with the majority on ratio, then the majority is the binding precedent. If the point is obiter, then it’s merely persuasive, not binding, irrespective of where it is.
Normally, the term &quot;benefit of the doubt&quot;, if it was used, would mean that ambiguities should be resolved in favor of the person entitled to it. This could be applied to contract interpretation or to statutory interpretation. Here is an example: When dealing with restrictions on campaign spending and speech, a court's construction must “give the benefit of the doubt to speech, not censorship. The First Amendment's command that ‘Congress shall make no law ... abridging the freedom of speech’ demands at least that. Colorado Educ. Ass'n v. Rutt, 184 P.3d 65, 75–76 (Colo. 2008) (ultimately holding that union activities to organize volunteers to walk precincts with a political candidate did not constitute a &quot;campaign expenditure&quot; of a union within the meaning of a state law restriction campaign contributions by unions).
An oral contract is (usually) entirely legally binding (exceptions include things like land sales). Written notes do not change that. The important thing about nearly contemporaneous notes is that if the contract runs into difficulty and you need to litigate, they are likely to be accepted by a court as good evidence of what was agreed. They will be much more difficult for the other party to challenge later (they can be challenged now of course - which is part of why they are considered good evidence of what was agreed).
If a contract sometimes uses the wrong name, is it still valid? Yes. It is valid as long as the contract as a whole permits identifying the parties (unequivocally) and ascertaining their role with respect to the contract. Using "Contractor" and "Consultant" interchangeably despite only the former being explicitly defined seems a bit sloppy, but it does not by itself alter or invalidate the meaning of the contract. The excerpt you reproduce is self-explanatory. Its first sentence identifies the parties, and there are only two. Thus, there is no reasonable way to dispute that the second sentence means "Contractor shall indemnify Company", since a clause of the sort "he will indemnify himself" makes no sense. Moreover, the legal definitions of Indemnitor and Indemnitee (Black's Law Dictionary) clearly make reference to "the person" (who protects or is protected, accordingly) and "the other" (that is, not to self).
Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms.
First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows.
Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right. Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution. By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable: Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach. In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal.