Interpretation contra proferentem Sample Clauses

Interpretation contra proferentem. The principle of interpretation contra proferentem (against the offeror/draftsman) refers to the universally recognized principle that the party who is responsible for drafting the ambiguous or equivocal contract provision should be responsible for the ambiguity, leading to the provision being interpreted against it.301 The principle is based on the idea that the draftsman would have had the opportunity to phrase the provision so that no confusion as to its meaning arises, whereas the opposing party could not have influenced it. Naturally, this rule, typically applied in cases of standard terms and conditions, does not apply when parties have drafted the agreement together. In KKO 2013:84, the District Court and the Court of Appeal (without specifically mentioning this principle) did both refer to the fact that the signatory parties did indeed have the opportunity to expressly bind the non-signatory by a more specific arbitration clause. Indeed it may be noted that in the case at hand, the circumstances are lucid since the crucial provision, the arbitration clause, was drafted by the signatories alone. Therefore, the prerequisites as to applying the contra proferentem rule are met. 300 See ibid. p. 142. 301 See Xxxxxxxx-Xxxxxx 1999, pp. 259-260; Hemmo 2007a, pp. 638-639; Article 4.6 of the UNIDROIT Principles of International Commercial Contracts; Article 5.103 of the Principles of European Contract Law. For case law, see also e.g. KKO 1984-II-17; KKO 1978-II-126. Some criticism may and has been presented towards this rule of interpretation. First of all, the author is of the opinion that it may sometimes place undue pressure on the drafting party and does not really encourage one to take on the task. Another opinion points out that the rule in fact encourages the other party not to remark the draftsman on an ambiguous term.302 However, this criticism does not apply to the case at hand because the non- signatory had nothing to do with the contract. Lastly, the contra proferentem rule is not absolute. It must be taken into consideration how the ambiguity of the provision in question manifests itself in relation to the other party. For example, the text itself may be written in poor English or the concepts and terms used may be extremely complex. The defining factor in determining whether the rule favors the party who has not drafted the provision is how that party within reason should have understood said provision in juxtaposition e.g. with the type of con...