Wednesday, April 28, 2010

antecedent, rule of the last

In 1891, attorney Jabez Sutherland wrote a book on interpreting contracts and statutes. He created a simple rule for deriving the meaning of contract clauses that contained multiple obligations or conditions. Sutherland said that when a qualifying word or phrase is used with a group of obligations or conditions, the qualifying terms are presumed to modify only the condition or obligation that immediately precedes it (the “last antecedent”).[i]

EXAMPLE 1: A contract clause states: “Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years, and thereafter for successive five (5) year terms, unless and until either party terminates it by providing one year prior notice in writing to the other party.” The qualifying phrase: “unless and until either party terminates it by providing one year prior notice in writing.” The last antecedent: “successive five year terms.” Applying the rule to this clause, either party could terminate the agreement under the notice provision only during “successive five (5) year periods,” not during the initial five-year period.

EXAMPLE 2” The U.S. Constitution states: "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...” The qualifying phrase: “at the time of the Adoption of this Constitution.” The last antecedent: “a Citizen of the United States.” If the rule were not applied and the phrase was intended for both of the conditions, then the U.S. would have run out of presidential possibilities—natural born Citizens at the time of Adoption of this Constitution—sometime in the 19th Century.

Unfortunately for those seeking contractual clarity, Jabez Sutherland muddied the waters by added a qualifier to his rule: “̀Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma.” Although still used by some American courts[ii], this exception could lead to unintended results, because it conflicts with common grammatical usage of commas. Like all rules of construction, courts generally apply this one with a dose of common sense in order to avoid potentially absurd results.

[i] Service Employees International Union Local 503 v. State of Oregon (Ct. App. 2002).

[ii] Ibid.

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