|Maxims and arrows|
Those who cherish the feel of flannel close to their skin will take comfort in expressions like “all or substantially all”; “in whole or in part”, “one or more”; “unless otherwise agreed” . These expressions betray the fear that a judge reading your prose will take a perversely literal view, and construe your words deliberately to upset you; as the Latins say, “contra proferentem”.
But the law of the land is not there to frustrate honest commercial intentions. A court will only do that if a contracting merchant’s intentions are base (as, to be sure, many will be if the opportunity arises: Adam Smith had some choice things to say about that). A fellow who exploits his counterparty’s vulnerability or patent misapprehension can expect to find the awesome creative weight of the common law – estoppel, constructive trust; money had and received, assumpsit – incanted against him. Expect him to have a fully weaponised litigation department.
If that’s your caper, don’t expect words on paper, however exquisitely turned, to help you.
But if it isn’t – if you act in good faith, reasonably, loving your neighbour as you love yourself; doing unto others only what you would have them do to you – you have little to fear from a literal construction. The common law is your friend.
The Latin maxim – anus matronae parvae malas leges faciunt (“little old ladies make bad law”), even though I made it up, may be the final, deepest foundation of the law of equity. It has a converse expression, also home made and converted into Latin to make it sound plausible: noli mentula esse: don’t be a penis. Be clear about what you want, be a good egg and you have little to fear from her majesty’s judiciary. Bonum ovum esse, you know?
It is true that common law formulated in the service of wronged spinsters presents later courts who are bound by it with hefty intellectual challenges, but no self respecting judge shies away from those – they’re what she took the oath for in the first place.