United State President John Fitzgerald Kennedy once remarked of Winston Churchill’s wartime speeches: ‘He mobilised the English Language and sent it into battle‘. What he intuitively understood was that the English Prime Minister enabled millions of people to find meaning in the midst of the Second World War through language. Less prosaically, the words used in a contract is similarly important in creating meaning for parties to it. If you have ever wondered what is the difference between ‘the’ and ‘a’ in a contract and why it matters, this article talks about how those little words can make a whole lot of difference.

What Are ‘A’ and ‘The’?

Although grammar is rarely fun, it is instructive. And considering what ‘a’ and ‘the’ are as parts of speech helps explain their contractual significance.

‘A’ and ‘the’ are articles. They are used in speech to refer to or indicate a noun. Hence ‘the table’ or ‘an apple’. The difference between the two is that ‘a’ is the indefinite article, and ‘the’ is the definite article. While this might sound obscure and even vaguely unsettling, understanding the differences between them tells us what is the difference between using ‘a’ and ‘the’ in a contract.

When a person uses ‘a’ in speech, they do not specify the noun to which they refer. So, talking about an Apple doesn’t tell us which Apple. We might feel sure that we do, but that is only our opinion. Without clarification, an Apple could either be sitting on their kitchen bench, on sale in the supermarket or their lunch box.  It does not mean that their speech lacks meaning. It merely indicates generality and ambiguity. The degree of both is only measurable in context.

Conversely, we use ‘the’ in speech when we specify the noun to we refer. If a person discusses ‘the table’ with their friend, they both know the table to which they refer. It can only be one table. Their speech has a level of specificity that simply cannot be had using the indefinite article. It is, by its very nature, indefinite.

Neither the indefinite or definite article is inherently better or more useful than the other in and of itself. All parts of speech are useful and necessary. However, in certain contexts using ‘a’ or ‘the’ is better and preferable because the context demands it. Such is true when it comes to contracts.

Contract

Simply put, a contract is a promise supported by law. The law enforces this promise because there was ‘consideration’. Consideration is a legal term, describing the act of one party to the contract giving the other party something of value as the price of the promise.

As a legal document, a contract describes the rights and obligations of all parties to it. The language used in the contract, therefore, has a legal effect. The exact effect depends on the words used.

If I use ‘a’ in a contractual clause, that clause automatically has a degree of ambiguity in it. The parties may each think that they know what it means. However, if a court has to decide on the meaning of a clause in a written contract, it will likely focus on the ordinary sense of the words on the page, rather than what the parties thought at the time.

An ‘a’ is indefinite. There may be one meaning but equally, there may not. If I have used it in a contract, I have created a situation where the rights and obligations are potentially ambiguous. Disagreement is possibly more likely than otherwise. And while a court could eventually settle the matter using principles of construction, it is an expensive and lengthy process. It can often lead to bad will between the parties.

However, if I use ‘the’ in the clause, they have automatically introduced more specificity into the contract. My rights and obligations are more clearly delineated. Arguments about meaning are less likely, all things being equal. Of course, they can still occur. But using the word ‘the’ has minimised the potential for disagreement.

And that is why using ‘a’ or ‘the’ matters in a contract. A contract specifies rights and obligations. It has to be if it is to be commercially useful. Each party must know what they have to do. Without that certainty, it is risky. Of course, all business and all contracts come with risk. But for a business to be able to make as informed a decision as possible about the potential benefits to them from it, the risk must be as minimal as possible. Using ‘a’ introduces unhelpful ambiguity and unnecessary risk. Using ‘the’ minimises it as much as possible.

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Contact LegalVision’s qualified lawyers to assist you with drafting your contract. Questions? Call us on 1300 544 755.

Carole Hemingway

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