Probably not, if there's a Rule of Construction clause.
We’ve written at length about how contracts are designed to control you, and how you should review every contract thoroughly before signing it.
What happens when you want to escape from a contract? Arguing that it is unfairly drafted is usually not effective, thanks to the exclusion of the common law Rule of Construction.
In contracts, the Rule of Construction says that, in the event of a dispute, the Court should interpret a contract in favour of the party who DIDN’T draft it. This gives recognition to the very clear advantage the drafting party has.
However, any good attorney drafting a contract for their client knows to include the following clause:
This agreement is the result of negotiation by the parties, both of whom have had the opportunity to engage legal representation. Therefore, the common law rule of construction that the agreement shall be interpreted against the party who drafted it, shall not apply.
What does this mean?
Including this clause negates the common law position, meaning that you cannot claim that a contract presented to you should be interpreted in your favour.
Not only does this control the interpretation of the contract, it essentially forces you to affirm that you have read the contract, and you believe it to be fair – whether you have or not.
However, one cannot claim not to have read or understood a contract as a defence – because another common law rule, called Caveat Subscriptor, means that “if you sign it, you’ve read it and agree to it”.
Review contracts and ensure fair terms before signing.
Failing to identify and deal with clauses like the Rule of Construction clause can allow the other party to sneak in a host of unfair terms and get away with it. It’s worth investing a few hours with experienced commercial attorneys to uncover the deep strategy lying within a proposed contract.
Maybery Inc. has drafted and reviewed every type of commercial contract, from a simple sales agreement to advanced portfolio transactions and due diligence.
Contact us to review your next contract or proposed transaction, and avoid expensive litigation later.
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