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I've checked similar questions, but I feel this one is a somewhat different.

Suppose someone signed a contract saying "you must not do A, but you must do B", and some time later it turned out that A and B were the same. Is there some settled understanding of how this may be ruled upon (no particular jurisdiction in mind)?

For example, you signed up to a Joe's Fried Chicken franchise and the contract said you must not use KFC 12 secret spices, but you must use these spices A...L. Unbeknown to you these turned out to be the 12 KFC spices. Perhaps even instead, you did know that the spices were the 12 KFC spices.

Given that you were instructed not to do A and must do B, and A and B are the same, are you free to ignore A and do whatever you want (since A is B), or are you bound to do B since you might not have known that B is A? Might you be asked by a judge to explain why you didn't seek clarification due to the conflict in the contract if you did in fact deliberately choose to do A?

Does it matter if you know A is B and you are using that information to do whatever you want?

This actually did occur in a contract a family member is involved in, but I'm leaving out the circumstances just to get a general idea of how contentious this might turn out to be.

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  • Since KFC's recipe is a well-guarded secret, the restriction presumably means you mustn't purchase the spice blend from KFC. It seems to be a coincidence that JFC's spices are the same, but that doesn't mean you can purchase from KFC.
    – Barmar
    Commented Apr 23 at 19:31

1 Answer 1

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Courts will attempt to interpret the terms of the contract harmoniously. Terms that appear to be in conflict when read in isolation may not be in conflict when interpreted in their full context, considering the rest of the contract, its purposes, and background known to the parties.

For example, consider a contract that has a term appearing to impose a broad prohibition on some activities, but also a specific obligation to do an activity that is seemingly prohibited by the first term. A court may very well read the obligation as an exception to the prohibition.

How any particular apparent conflict is resolved depends on the specific contract, context, purpose, and background facts known to the parties at the time the contract was entered.

In the extreme, where the terms are irreconcilable, even after a full contractual interpretation exercise, the terms or the entire contract may be void for uncertainty.

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    "the terms or the entire contract may be void for uncertainty." To add some of the key buzz words, sometimes this is called a failure of contract formation because there was no "meeting of the minds" and sometimes the doctrines of mutual mistake and/or impossibility are invoked.
    – ohwilleke
    Commented Apr 23 at 16:56
  • Thanks for the reply. Unfortunately I'm not allowed to upvote you. The problem with the situation I illustrate is that the single clause is pretty well isolated from the rest of the contract. It doesn't actually seem that there is a broad prohibition on something and a more specific allowance; there are two apparently equal contradictions.
    – kormel
    Commented Apr 23 at 17:17
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    @kormel When a contract is ambiguous on its face, as you suggest, the meaning of the contract ceases to be a "question of law" which the interpretation of unambiguous written contracts usually is, and becomes a "question of fact" that can be supplemented by "extrinsic evidence" (i.e. evidence other than the contract itself) regarding the intent of the parties. Often this would include prior drafts, written instructions regarding the drafting of the contract, letters of intent, testimony of the parties, their course of dealings, and evidence re the overall context re what would make sense.
    – ohwilleke
    Commented Apr 23 at 22:41
  • @ohwilleke I think that makes a lot of sense and seems more responsive as an answer than the existing one.If I were to speculate as to the intent of the party that drew up the contract, I would say that they really only wanted to ensure that the second party would comply with B but by giving an example of something not to do (A), they created this ambiguity.
    – kormel
    Commented Apr 24 at 5:44
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    Conflicting terms would only void a contract where they are essential to its performance. Where the primary purpose of the contract can be achieved notwithstanding the contradiction, just the conflicting terms will be void.
    – Dale M ♦
    Commented Apr 24 at 8:07

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