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I am having difficulty interpreting a clause relating to a referral rewards program, which entitles an existing client to an incentive for each additional client they refer to a company. The confusion revolves around the parsing of this clause:

"You cannot refer yourself via a joint account, a family member or a member of the same household"

Which of the following structures does this parse to?

You cannot refer yourself via:

  • a joint account;
  • a family member; or
  • a member of the same household.

or

You cannot refer:

  • yourself via a joint account;
  • a family member; or
  • a member of the same household.

Is this clause poorly constructed? Would it leave the company open to legal challenge, or is there clear grammatical precedent for interpreting such a clause? The company is very well legally resourced and in a highly regulated industry.

  • Depends if you want each of the enumerated things to be the object of the proposition or the object of the verb. The former leads to a contrast in how the referral occurs, while the latter leads to a contrast in whom or what can be referred. The preceding is only a grammatical analysis. However, it does seem likely that the lack of grammatical clarity would lead to a lack of legal clarity. – Michael McGovern Aug 18 '17 at 4:37
  • If you consider this in context, it does not make any sense to list ways that one could refer themselves to a program, as that would imply that some ways of referring yourself would be valid, which is clearly not true. I doubt any court would allow that interpretation of the text to be used in an argument. – animuson Aug 18 '17 at 4:59
  • That does seem ambiguous, and I'd tend to assume that someone specifying such an ambiguous clause would have to bear the brunt of any reasonable interpretation of it. So if it'd be reasonable for someone to read it either way, then I don't see how they could be faulted for doing so. This should follow from the general rule that a party complying with a reasonable interpretation of a contract can't be faulted for not complying with that contract. – Nat Aug 18 '17 at 5:57
  • As a software developer, where syntax is critical, it's interesting that this kind of ambiguity would pass QC in a large, well legally resourced organization. It doesn't seem difficult to identify and fix such a syntactical 'bug'. Smart Contracts are a very exciting concept, it will be interesting to see what kind of an impact they make. – Satellite Aug 18 '17 at 7:11
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The second interpretation is the one that makes sense, in light of the most likely goal of this clause.

If you recommend to a potential client A that they do business with company B, you are referring A to B (you are recommending B to A). The company's interest is in getting new clients, and in preventing giving rewards to spurious referrals, that is ones which were not genuine potential new business. Referring yourself (via the subterfuge of using a joint account that you have) would not be bringing in new business; nor would getting family (including "same household"). The first interpretation limits the prohibition of referrals to just "yourself", and fails to include a prohibition against referring all of your aunts, cousins and roommates (which they assume, reasonably enough, are not actual potential new customers). Furthermore, there is no sensible meaning to "referring yourself via a family member". This would mean having a family member tell you that you should do business with Company B.

There may be some stylistic preference for adding a comma before "or", but it is perfectly interpretable as it stands.

  • The product is a bank savings account with a favorable interest rate, requiring a significant deposit to qualify as an 'active referral'. Given the personal nature of the product, and the commitment device associated with opening a new account, family or housemates could indeed represent genuine new business. 'refer yourself via' would then represent a condition of agency - is the new referral (a family member) acting at arms length, or are they an agent of the existing account holder for the purpose of gaming rewards. This interpretation is a little more convoluted but not unreasonable imo. – Satellite Aug 18 '17 at 7:02

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