How do we interpret a formal commercial agreement if it is ambiguous and we have reason to believe that its draftsman did not have a deep understanding of the relevant law? I think that is what this case is about.
The secret of drafting legal documents was best described by Nicolas Boileau, who was not only a literary critic but a qualified lawyer: “Ce que l’on conçoit bien s’énonce clairement et les mots pour le dire arrivent aisément”. What one conceives well can be stated with clarity and the words to say it come easily. We should all have that framed and displayed on our desks. But too often the opposite precept is followed. Bits of legal boilerplate are bolted together so that it is the words that are allowed to shape the concept instead of the other way round. In that regard the invention of the word processor has worked wonders. Sometimes, I fear, it has dispensed with the ‘concept’ altogether. Misfortune not infrequently follows.
Those who draft intellectual property licences may learn something from the misfortune that has befallen the parties to this case. They have entered into a licence agreement that contains a crucial phrase which is exceedingly hard to interpret. I have changed my mind several times about its meaning – it is a veritable Necker cube of licence agreements. The result is business uncertainty and costly litigation.