Typo in contract

Question

I have a contract with an admin error in it. The termination clause is supposed to be 90 days, but the contract has a typo that introduces some ambiguity:

Either party may terminate this Agreement, or any Services to be performed hereunder, in whole or in part, without cause and for its own convenience, by providing the other written notice of termination at least thirty (90) days in advance, specifying the extent to which the Agreement is so terminated and the date upon which such termination becomes effective

This is further complicated by the fact that the original agreement was struck between myself and an out-going manager. We verbally agreed the terms of the contract (although we didn't specifically discuss termination period), and when I sent it over for signing, he accepted and I have a screen print from a Slack conversation with him where he states "Looks fine to me - 3 months notice period under normal conditions is fair".

A new manager has since come in and wants to change the agreement. Firstly, he wants to reduce the amount of hours, which IMO seems fair. However he also wants to add a clause in that could potentially impact my ability to fulfill my side of the agreement, so I am not willing to accept that term. He is insisting on this clause, I am refusing to accept.

He also keeps insisting that the contract has a 30 day termination period despite me explaining all of the above to him (my understanding all along has been that it is 90 days).

This impasse has got me reviewing my options. It's looking like the contract will be terminated and I'd like some advice on whether I am within my rights to insist on a 90 day termination period, despite the typo in the contract.

Whatever the outcome may be, I'll definitely be chalking this one up to experience!

Answer 1

Tricky. Let's assume this goes to court.

Obviously there's a mistake (do yourself a favour and don't call it a typo). We have "thirty (90)", not "thirty (30)" or "ninety (90)". If you insist on calling it a typo, 90 instead of 30 is a typo, thirty instead of ninety isn't. It's a completely different word. On the other hand, 3 and 9 are in quite different places on the keyboard... If that was the only question, you would probably lose.

Two things are in your favour: Your external evidence (a screenshot saying "3 months") could be used to find out what the intent was. Maybe he was confused? Well, maybe he wasn't. If he typed "3 months" it is much more likely that he meant 3 months, and not 1 month.

And finally, if something is unclear in a contract, that should be held against the person who wrote the contract. If you wrote that contract, you lose. If the company wrote the company, you win.

Now the best way for you is if you can convince the company that my interpretation is right and avoid court altogether :-)

Answer 2

What you have is a text book case for the parole evidence rule. Normally verbal agreements are not relevant to written agreements. But because a typo "thirty (90) days" has caused an ambiguous term, verbal conversations which make clear the intentions of the parties are relevant.

Thus for the specific set of facts given, the proper notice terms are ninety (90) days.

Answer 3

You are entitled to the 90-day notice of termination.

Since the clause on termination notice was negotiated between you and the company, neither party is allowed to resort to the doctrine of contra proferentem that typically decides this type of ambiguities.

Instead, the screen print is indicative of the parties' intent --at the time the contract was formed-- regarding the termination notice. The screen print reflects that the term of "thirty" in the actual contract is a mistake and hence unenforceable. For the company to prevail on this issue, the company would need to show contemporaneous [to the contract] or posterior evidence that outweighs or strikes your evidence.

To be clear, it is arguable (based on the screen print you mention) that you proposed that termination notice be of 90 days and that the company accepted it. However, contra proferentem is devised to compensate for the difference of parties' bargaining power. Since most likely the company's bargaining power significantly outweighed yours during the formation of the contract, affording to the company the benefit of contra proferentem would contravene both the purpose of that doctrine and the intent as palpable in your "Slack conversation" with the former manager.

Side note: You mention "we didn't specifically discuss termination period". But in reality the manager's response that "Looks fine to me - 3 months notice period [...] is fair" proves that the company knowingly and willfully entered that part of the agreement, which is what matters in contract law. Thus, you two certainly discussed termination period (that is, a discussion need not involve controversy or hesitance prior to reaching consensus).

Answer 4

There is no way to know if you guys agreed to thirty or ninety days originally, but you should have caught this when you signed it.

If you can not agree to one or the other, you would have to go to court to fix it. The judge would have to hear from you and the person you entered into the contract with and then weigh the evidence.

There is not enough information here to clearly determine who is right. The former manager you entered into the contract with might say thirty or he might say ninety. There just is not a way to tell without hearing from all parties.