Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Fluffy Cats and Dogs

Fluffy Cats and Dogs

Postby Peter and Luke » Fri Jan 27, 2017 1:20 pm

Hi All

It is not often that a case comes before the UK Supreme Court related to the construction and interpretation of a clause in a commercial contract but that is what is happening soon - 7 Feb.

The appeal is brought by Capita and is about the meaning of an indemnity clause in a Share Purchase Agreement.

The 119 indemnity clause is an example of overly ambitious drafting which has clearly gone awry somewhere along the line. The reference in the subject header is taken from counsel`s argument in the Court of Appeal wherein the statement "I like cats and dogs which are black and fluffy" was used as a means of establishing that Capita`s interpretation of the clause did not make sense -logically speaking.

On the facts, I still have not made my mind up as to which interpretation is the correct one. At first reading it appeared to me as though Capita had been hard done-by based not so much upon a literal interpretation of the words used, but on a wider view as to what the parties were intending to achieve (which was surely to insure against mis-selling (any mis-selling) by the Sellers prior to the Completion Date). However, there were separate warranties in place which would have allowed recovery (albeit limited in terms of quantum recoverable and time) against that kind of loss.

Anyway, I am looking forward to hearing the arguments again.

https://www.supremecourt.uk/cases/uksc-2015-0212.html
Peter and Luke
 
Posts: 59
Joined: Wed Jun 08, 2016 9:27 am

Re: Fluffy Cats and Dogs

Postby Hairyloon » Fri Jan 27, 2017 1:36 pm

In this connection Mr Twigger proffered an analysis based on the relative likelihood of different meanings of a hypothetical predicate.
Suppose, he said, that X says "I like cats and dogs which are black and fluffy".
That might mean (a) "I like cats and dogs which, in each case, are both black and fluffy"; or
(b) "I like cats of any kind and dogs that are black and fluffy".
But it is most unlikely to mean: "I like cats which are fluffy and dogs which are black and fluffy".


Seems to me that for (b), you would want a comma: "I like cats, and dogs which are black and fluffy".
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10093
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Fluffy Cats and Dogs

Postby Peter and Luke » Fri Jan 27, 2017 1:49 pm

I am not an expert in grammar but seem to recall that it is not considered proper to place a comma before the word "and" or "or". I do agree with you though.

In my drafting, I sometimes use brackets ( ) to "isolate" meanings such as " I like cats (and dogs which are black and fluffy)". I do accept that this device might alter the meaning slightly rendering the bracketed words "inferior" in some way.

I would go further than "most unlikely to mean" in respect of the third option. That simply is wrong and impossible to construe as such.
Peter and Luke
 
Posts: 59
Joined: Wed Jun 08, 2016 9:27 am

Re: Fluffy Cats and Dogs

Postby Hairyloon » Fri Jan 27, 2017 2:02 pm

Peter and Luke wrote:I would go further than "most unlikely to mean" in respect of the third option. That simply is wrong and impossible to construe as such.

Except that fluffy cats are cats, so if one likes cats, one likes fluffy cats.
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10093
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Fluffy Cats and Dogs

Postby Peter and Luke » Fri Jan 27, 2017 2:11 pm

Not always so: fluffy cats may indeed be cats. But so too are bald cats.

So if one likes cats, one might like bald cats (and not fluffy cats).

You're making an assumption that ALL cats are fluffy and they are not (as we know) :)
Peter and Luke
 
Posts: 59
Joined: Wed Jun 08, 2016 9:27 am

Re: Fluffy Cats and Dogs

Postby diy » Fri Jan 27, 2017 5:49 pm

i think the assumption is that he likes all cats. but it could be true that he likes bald ones but simply hasn't specified
My suggestions are not legal advice
User avatar
diy
 
Posts: 2594
Joined: Fri Nov 02, 2012 10:06 pm

Re: Fluffy Cats and Dogs

Postby Hairyloon » Fri Jan 27, 2017 6:06 pm

Peter and Luke wrote:Not always so: fluffy cats may indeed be cats. But so too are bald cats.

So if one likes cats, one might like bald cats (and not fluffy cats).

You're making an assumption that ALL cats are fluffy and they are not (as we know) :)

No, you are inferring "I like cats which are fluffy" to mean "I only like cats which are fluffy."
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10093
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: Fluffy Cats and Dogs

Postby atticus » Fri Jan 27, 2017 6:14 pm

If you read the CA judgment, you will find the clause that the court was asked to interpret, and the competing interpretations. I callenge anyone to be able to say definitively which is the right interpretation.

The cats and dogs stuff does not help.
User avatar
atticus
 
Posts: 19875
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Fluffy Cats and Dogs

Postby Peter and Luke » Fri Jan 27, 2017 6:37 pm

Yea agreed, the cats and dogs stuff is just a bit of fun!

I also agree that this looks 50/50. I read the CA judgment and the reasoning is not convincing. At one point there is even an observation that there is "no rule about commas" or some such similar language.

Anyway, we will see!
Peter and Luke
 
Posts: 59
Joined: Wed Jun 08, 2016 9:27 am

Re: Fluffy Cats and Dogs

Postby atticus » Fri Jan 27, 2017 8:15 pm

I am moved to remember the French version of Asterix in Britain. Asterix and Obelix are visiting a British chieftain, who says "il pleut des chats et des chiens".
Obelix is puzzled, looks out of the window, and sees ...
User avatar
atticus
 
Posts: 19875
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Next

Return to Contract and Consumer Law

Who is online

Users browsing this forum: No registered users and 1 guest