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I was given a contract, which at the top states my name and says "herein referred to as contractor" but in several sections of the body, it appears that there is a mistake where they use the word "consultant" instead.

Example:

This contract is between Joe (herein "Contractor") and McCompany (herein "Company"). blah blah blah. Consultant shall indemnify Company.

What, if any, would be the effects of this inconsistency?

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    How ironic . :) – ikegami Apr 15 at 18:40
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    Off-topic, but I strike terms like that in my consulting arrangements or walk away. I tell the company to purchase an insurance policy like the rest of the free world if they want indemnification. – jww Apr 17 at 10:50
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    @jww "I strike terms like that in my consulting arrangements or walk away". I (sincerely) applaud that courage or overall approach toward business, as that promotes a culture of fairness. However, there is always a chance that some subtlety might go unnoticed when signing a contract. Hence the importance to dig for the meaning and ultimate consequences of such clauses. – Iñaki Viggers Apr 17 at 11:43
35

If a contract sometimes uses the wrong name, is it still valid?

Yes. It is valid as long as the contract as a whole permits identifying the parties (unequivocally) and ascertaining their role with respect to the contract. Using "Contractor" and "Consultant" interchangeably despite only the former being explicitly defined seems a bit sloppy, but it does not by itself alter or invalidate the meaning of the contract.

The excerpt you reproduce is self-explanatory. Its first sentence identifies the parties, and there are only two. Thus, there is no reasonable way to dispute that the second sentence means "Contractor shall indemnify Company", since a clause of the sort "he will indemnify himself" makes no sense. Moreover, the legal definitions of Indemnitor and Indemnitee (Black's Law Dictionary) clearly make reference to "the person" (who protects or is protected, accordingly) and "the other" (that is, not to self).

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    Please note that this might be subject to type of contract and jurisdiction. For example, in Germany, in a tenancy agreement (this are regulated quite strictly, in many cases in favor of the tenant), even a minor mistake like this could make the paragraph invalid. – Guntram Blohm Apr 15 at 14:58
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    @GuntramBlohm It would be interesting to cite/know some specific statute where a minor mistake truly invalidates the entire clause. Even in a highly regulated matter, an extreme degree of strictness could run afoul of the legislative intent. – Iñaki Viggers Apr 15 at 18:29
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    IANAL, but if you're sloppy your chances of spending some time in court are likely to go up. – EvilSnack Apr 16 at 2:03
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    @EvilSnack True, although there is also the principle that de minimis non curat lex, meaning that courts will not waste time adjudging insignificant issues.Taking someone to court for an insignificant matter is vexatious and much likelier to backfire. – Iñaki Viggers Apr 16 at 10:43
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    @RossRidge The magnitude of relief might be significant, but trying to allege a distinction between consultant and contractor is futile unless the defendant (i.e., the presumable indemnitor) is able to prove that the term "consultant" refers to a third party. The context provided by the OP has no indication of that being the case nor of the possibility of reasonably interpreting it that way. The principle of de minimis non curat lex applies to the dispute of indemnitor's identity, regardless of how material or how detrimental the consequences would be. – Iñaki Viggers Apr 16 at 20:12
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What, if any, would be the affects of this inconsistency?

Almost certainly none. The written contract is evidence of a meeting of minds. Minor typographical errors like that won't have any impact.

I'd still point out the errors to the company though before you sign.

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    Probably not really a typo, but incomplete editing of a boilerplate. – Barmar Apr 15 at 16:30
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    Typographical errors are errors in printing, not typing mistakes (typos). – Ross Ridge Apr 16 at 0:52
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    @RossRidge That is the origin of the term, but language changes. A typing error is now called a typo. – Martin Bonner Apr 16 at 5:11
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    Actually looking into it, it seems the definition of typographical error has changed too. Though as Barmar said, using the word "Consultant" instead of "Contractor" isn't either kind of typographical error. – Ross Ridge Apr 16 at 6:25
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    As an aside, if the err... mistake does introduce an ambiguity, the party that wrote the contract doesn't generally get to disambiguate it. – HAEM Apr 17 at 13:49
7

The terms of the contract need to be clear enough to identify the parties involved and what their obligations are. (This is called "Certainty of Terms", or Finality of Terms).

At the end of the day it would be the judge that decides if the terms were indeed sufficient. It's best to have a lawyer look through the contract to ensure that a court would enforce it.

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    Or just point it out the company offering the contract - they will probably fix the typo without quibble. – Martin Bonner Apr 15 at 14:33
  • It's so trivial that I would fix it outright (digitally or in the margin of a hardcopy) when signing. In many jurisdictions, such trivial corrections can be silently accepted by the company and still have full force. The company could still say "sorry, but that's actually a bigger problem than a typo", only then would there be no contract. – MSalters Apr 15 at 16:21
3

Watch out, most answers here rely on anglo-saxon common law, which principle is that anything clear, even verbal, has a value of contract.

But in other types of legal systems relying heavily on written contracts (especially the Napoleonic-style law used in France), if there's any kind of conflict between you and your employer they could exploit this ambiguity and wouldn't even have to demonstrate that the "contractor" is not the "consultant" -- there would be no amount of "logic" sufficient to prove what the words don't state explicitly.

The judge would have to turn on you, just because "that's not what's written on the contract". Even if the judge concluded that "this ambiguity makes the contract void", then you'd still be doomed, as it would just mean that you have worked willingly without a valid contract for years; and now the company owes you nothing.

  • Even if there were found to be no contract, it would not follow that no money is owed. At the minimum, the employer would owe minimum wage. The employee could also make arguments such as estoppel, unjust enrichment, etc. – Acccumulation Apr 16 at 19:21
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    Your depiction of French contract law is very inaccurate. The French Civil Code in its article 1188 (formerly 1156) places the parties' intent above "the literal meaning of the terms". This treatise (example, on pp. 74 and 81) systematically reflects that French contract law does not differ from U.S. contract law in this regard.See also the Haviltex rule in Dutch contract law, and article 1281 of Spanish Civil Code. – Iñaki Viggers Apr 16 at 19:45
  • The principle that "the parties' intent is above the literal meaning of the terms" is regularly defeated in court. Again: If there's ambiguity it can easily make the whole thing void. – jeancallisti Apr 24 at 12:19
1

IANAL, but in the US, at least, a mistake like this does not invalidate a contract. As long as the intent of a contract is clear, the courts will still enforce it.

What a mistake like this CAN do is make the contract ambiguous, and give one of the parties an opportunity to try to convince a judge that their interpretation is what was intended, or at least, that they reasonably believed that that was what was intended.

It's hard to see how someone could plausibly claim ambiguity in this example. I doubt any judge would buy an argument that "consultant" here means "company" and not "contractor". But one can easily imagine a contract where the parties are not clearly identified, and that has a clause like, "the Contractor shall pay all shipping expenses", and both parties claim that "the Contractor" means the other guy.

While judges have made a lot of crazy decisions over the years, especially when politics is involved, most of the time their rulings make some sort of sense. Unless the judge has some reason to be biased against one party or the other, he's not going to throw out a contract just because of one inconsistent word usage. Contracts are written by human beings. I'm sure lots of contracts contain errors of one sort or another, and the longer and more complex the contract is, the more likely it's going to have this kind of mistake.

0

As always, the contract holds until one of the parties dispute it in a court of law, or threatens to do so. (civil dispute)

Are you going to dispute it? You shouldn't, because there is a good chance you will lose. You would lose a good deal of money and also get a bad reputation among potential customers.

Is the company going to dispute it? Probably not. They can afford better lawyers than you can, but even if they win, it is going to cost them more than just paying you whatever they owe you. Also, even big companies worry about their image. This would be really bad publicity for them.

If worst comes to worst, you should concentrate on that bad publicity. You are the Small Independent Business Person, who has been trapped by the Big Terrible Faceless Corporation. Give interviews where you exclaim that you had never thought a minor typo like that could mean anything. McCompany is going to settle before you can say "Woe is me!" In fact, give them an opportunity to settle before giving that interview.

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