Contract Mischief: The Devil Made Me Do It

I’m something of a collector.

Over more than four decades of practicing law, I have occasionally encountered language in intellectual property licensing agreements and related contracts that have given me pause. Sometimes it was just a typo. Sometimes it was language or a provision borrowed, ill advisedly, from another agreement. Sometimes it was careless. Sometimes, I think, it was a lawyer trying to be just a little too lawyerly. Sometimes, well, there was just no plausible explanation.

Whatever the cause, and whether it produced a chuckle or alarm, I began saving them. And so it is that I have amassed quite a collection,

When we draft language like the language you will see excerpted in this article, courts are sometimes called in and tasked with divining what the parties intended when the deal was struck. They have, over the centuries, established rules of construction and interpretation to aid them in this process and to lend some predictability to the end result.

But the starting point is always this — when interpreting contract language, courts start with the assumption that the parties have used the language in the way that reasonable persons ordinarily do. With respect to the examples you will see here, that premise is clearly false.

Moving on, then, to a rule of construction we might be able to apply: Words in a written contract are to be interpreted according to their common, ordinary, and usual meaning...  unless manifest absurdity results...

Laying the Foundation for the “Devil-Made-Me-Do-It” Defense

The provision below started as a perfectly ordinary force majeure provision when it went out to opposing counsel for review and comment. When it came back, however, it had the noted insertion. 

Force Majeure.  Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God or the Devil, nor any government or any governmental body, acts of the common enemy, or other similar cause beyond the reasonable control of such party.

What exactly is an “Act of the Devil?” Seriously. Black’s Law Dictionary includes a definition for “Act of God.” It has a definition for “Act of Nature” (i.e., see “Act of God”). It has a definition for “Act of Providence” and another for “Act of Grace.” But there is no definition for “Act of the Devil.” So if you’re going to use it in a contract (and I would recommend against it), you had better define it, lest you find that you have paved the way for the “Devil-Made-Me-Do-It” defense. ...I don’t know what the devil got into me... I just decided not to make that payment.

Well, I Guess That About Covers It...

According to a rule known as ejusdem generis, when an enumeration of specific items in a contract is followed by some catch-all provision, the catch-all provision is interpreted to include only things of the same general nature as those specified. What, then, would you do with this?

Force Majeure. [Name omitted to protect the over-reaching] may not be held liable for failure to perform due to any contingency beyond its reasonable control such as acts of God, acts of Government, war or other hostility, civil disorder, weather, fire, power failure, labor dispute, like causes and any other similar or different contingency.

The Force Majeure Show Stopper

Force majeure provisions seem to turn up for my collection out of proportion to the space they consume in these agreements. Maybe it’s because they are back there in the boilerplate, where they get less than our full attention. But this perfectly ordinary force majeure provision was the showstopper.

Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if and to the extent that it is caused by an event or occurrence beyond such party’s reasonable control and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, or court injunction or order; provided, however, that written notice of such delay (including the anticipated duration of the delay) shall be given to the other party within ten (10) days of the occurrence of such event.   

So what’s the problem with this provision, you ask. Well, it’s not what it said, but where it was... at the end of a Disaster Recovery Services Agreement. Let’s see now, you pay them to step in and provide recovery services for your business in the event of a disaster... unless, of course, there’s a disaster. Perhaps a rule of construction will bail out the customer — the subject matter, nature, and object or purpose of a contract are used to discern its meaning (but query whether this rule is potent enough to write an otherwise unambiguous provision entirely out of a contract).

Finally, here’s a rule of construction we should all aspire to have applied to our drafting — a contract that is, by its terms, clear and unambiguous requires no real interpretation or construction and will be given the effect called for by the plain language of the contract.