Judges Have Some Leeway in Contract Disputes
What happens if two sections of a contract conflict with one another? Which one will be enforced by a judge?
It’s not a purely hypothetical question. Actually, it is fairly common, especially when a printed form contract is used as the basis for an agreement. For example, many landlords use a form rental agreement but then add clauses or paragraphs that apply to their particular apartment building, or cross out provisions they don’t like.
And since form agreements are often full of fine print, it is not unusual to find an added provision that conflicts with something in the printed portion.
State law has a specific answer. The Civil Code provides that “where a contract is partly written and partly printed . . . the written parts control the printed parts. . . . And if the two are absolutely repugnant, the latter must be so far disregarded.”
Let’s see how it works with a simple example. Assume that a form rental contract has a line, hidden in the fine print, that prohibits the tenant from having a pet. But the landlord and the tenant agree that the tenant’s friendly kitten can stay in the rented house, so they write in a sentence that says it’s OK for the tenant to keep the kitten, as long as she is kept inside. (The parties should each initial the new wording, as they should do with any other handwritten changes in the agreement.)
Technically, that new sentence directly contradicts another portion of the agreement, but since the new provision was handwritten, it will prevail. That would be true, even if the addition was typed.
State law requires that contracts be “read as a whole” and that any repugnancy be “reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract.”
Those are the actual words of the statute, and like most statutes, they may be a bit confusing. Essentially, what all this means is that judges have some leeway in interpreting contracts; they are encouraged to enforce them, maintain them and make the “whole” contract internally consistent in some way.
In our landlord-tenant example, for instance, if the tenant decided to replace the friendly kitten with a German shepherd, a judge would have to decide whether the provision permitting the kitten was merely one exception to the otherwise firm rule of no pets, or whether the exception was meant to make the original “no pet” provision invalid.
Of course, this sort of dispute would probably never wind up in court because of the costs involved, but it does demonstrate the point: Contract terms and conditions are never written to cover every contingency. Judges have to interpret them in accordance with the intent of the parties and the language of the rest of the contract, always bearing in mind--today’s lesson--that the written word prevails over the printed word.
Klein , an attorney and assistant to the publisher of The Times, cannot answer mail personally but will respond in this column to questions of general interest about the law.
