Ken Adams, "Courtesy of the High Court of England and Wales, A Reminder that Ambiguity Is Best Left to Experts", Adams on Contract Drafting 12/11/2016:
Here’s the language at issue (emphasis added):
Without prejudice to the provisions of paragraph 3 if all of the Conditions have not been discharged in accordance with this Schedule by the Longstop Date, then either Asda or Dooba may rescind this Agreement by giving to the other not less than ten working days written notice to that effect.
So can the Agreement be rescinded if "all of the Conditions have not been discharged" with broad scope of negation, meaning that "it's not the case that all of the Conditions have been discharged", i.e. at least one Condition has not been discharged? Or should we construe the clause with narrow scope of negation, requiring that every one of the Conditions must have failed? The deputy judge reasoned as follows:
The subject of the clause is “all of the Conditions”; the characteristic which the subject is required to have is “have not been discharged”. As a matter of strict Boolean logic, the relevant characteristic is a negative one, which must affect all of the Conditions in order to fall within the clause. […]
I agree with Asda that the formula “if all … have not …” is sometimes used to mean “if not all … have”, but I do not accept that this has become its primary meaning.
Ken suggests that
Instead of assuming that it was incumbent on him to rely on his own instincts in interpreting the language at issue, the deputy judge should have considered that perhaps an entire field of study is devoted to analyzing this sort of confusion.
He cites CGEL chapter 5, §5.1 to the effect that the scope of negation is systematically ambiguous in sentences like "All of the meat wasn't fresh", and goes on to his primary point, which is to offer guidance in how to draft contracts without planting this particular sort of semantic time bomb in them.
Half a century ago, there was a theory that such differences in scope-of-negation interpretation were a matter of dialect (or idiolect) variation — see e.g. Guy Carden, "A note on conflicting idiolects", Linguistic Inquiry 1970 — but it was soon shown that the judgments in question are variable, contextual, and unstable over time even for individual subjects.
The judge's overconfidence in the power of naive "logic" and in his own interpretive judgment reminds me of a similar issue in a non-legal context, discussed in "James J. Kilpatrick, Grammarian", 7/29/2006 — where a self-appointed expert proclaimed that only narrow-scope interpretations are legitimate, so that the phrase "mass transit is not an option for all drivers" necessarily means that it's not an option for any drivers.
In that post, I quoted examples of broad-scope interpretations from William Shakespeare, Anthony Trollope, Herman Melville, and T.S. Eliot. Today I'll cite a few legal texts where a broad-scope interpretation of "if all X not Y" is clearly assumed:
From the "The Companies Act 1989 Part II (Consequential Amendments) Regulations 1995" (U.K.):
One of the effects of Part II of the Companies Act 1989 is that a Scottish firm may be eligible for appointment as a company auditor even if all the partners in the firm are not individually eligible.
If it be argued that Foster and others were not parties to the decree and not bound by it, we answer, that if all the necessary parties were not before the court when the case was originally heard, it was the duty of the court to require the plaintiffs to bring them in, and a failure to do so was ground of error in that cause.
And one from 1882:
We understand that in this case all the parties interested on one side of the controversy, and all being citizens of other states than Texas, have applied for the removal as against the parties on the other side, who are all citizens of Texas. If this is so, then this case was properly removed under the first clause of section 2 of the act of 1875. If all the parties on one side have not applied for the removal, then the case was properly removed under the second clause of the second section of said act.
Code of Federal Regulations 31 CFR § 358.5:
If all of the callable coupons associated with the corpus are not submitted with the corpus, the corpus will be converted to a non-transferable BECCS security. Any remaining callable coupons submitted with the corpus will be converted to individual non-transferable CUBES securities.
If all of the information required under this part is not provided within the specified time limit, PBGC may assess a separate penalty under ERISA section 4071 against the filer and each member of the filer's controlled group (other than an exempt entity) of up to $1,100 a day for each day that the failure continues. PBGC may also pursue other equitable or legal remedies available to it under the law.
Any participant may file a motion requesting the Commission to issue a final decision without any initial decision. If all participants join in the motion, the motion is granted, unless the Commission denies the motion within 10 days after the date of filing of the motion or, in the case of an oral motion under paragraph (c)(2) of this section, within 10 days after the motion is transmitted to the Commission. If all participants do not join in the motion, the motion is denied unless the Commission grants the motion within 30 days of filing of the motion or, in the case of an oral motion under paragraph (c)(2) of this section, within 30 days after the motion is transmitted to the Commission.
A few other LLOG posts that underline the potential value to lawyers and judges of relevant training in linguistic analysis:
"Rarely better than de re", 10/23/2005
"Lawyers in need of linguistic training", 8/7/2006
"Adverbial modification at the Supreme Court today", 2/25/2009
"Law as applied linguistics", 7/25/2009
"Grammatical justice is served", 5/7/2009
"The indubitable equivalent of such claims", 12/16/2009
"Corpus linguistics in a legal opinion", 7/20/2011
"An empirical path to plain legal meaning", 3/3/2012
"Corpus linguistics in statutory interpretation", 3/3/2012
"It depends on what 'the' means …", 5/14/2012
"What 'the' means", 1/28/2013
"Misreading like a lawyer", 9/27/2013
"Legal scope again", 10/30/2013
"Syntax and semantics at the Supreme Court", 1/13/2014
"SCOTUS: A fish is not a 'tangible object'", 2/25/2015
"Legal lexicography", 1/4/2015
"Anaphoric definiteness in the ACA", 3/4/2015
"We'll just have to pass it…", 6/25/2015
"'Linguists have a name for this kind of analysis'", 8/15/2015
"Fun with commas", 8/17/2015
"The billion-dollar conjunction", 12/30/2015
"Annals of conjunction", 3/1/2016
"Corpus-based judicial opinions", 7/2/2016