2

I just had a long discussion with someone about the following sentence from a contract (highlighting by me):

The Author offers the Publisher an option to acquire the publishing rights under the condition of this Agreement of other works by the Author considered suitable for German publication.

The other person thinks that instead of "by the Author" relating to "other works" it relates to "suitable", meaning that the author decides what is and what isn't suitable. This would make the sentence equivalent to "[…] other works the Author considers suitable for […]".

While I strongly disagree (I think "other works by the Author" is an unit on its own and for the other meaning you would have to e.g. move "by the Author" at the end of the sentence), my position is just based on my grammatical gut sense and I can't think of any rules I can point to.

So who is right? Am I correct, is the other person correct or is perhaps the sentence unambiguously ambiguous in that regard?

Improve this question
2
  • 1
    The way I score it, the sentence is totally ambiguous as to who is doing the considering. But the "by the author" is unambiguously connected to *other works". I do not think the author can use the statement to withhold works that they consider unsuitable. Those considering could be the author, the publisher, or even a third party such as a governing body. I used to write contractual wording concerning specifications and work descriptions (and managed to avoid legal disputes over language), but I didn't handle the legalese or boilerplate clauses such as in your example.
    – Phil Sweet
    Commented May 7, 2017 at 13:47
  • 1
    This “other person” is a German, I'm guessing. In English it is just possible for a by s.o. modifier to precede the passive verb (or mere participle) that it modifies. But that is a distortion of normal syntax, such as may be required and justified by rhyme and/or meter in poetry. This syntactic pattern is far more natural and common in German. Your own reading is thus more typical for a native English speaker. But fire whatever lawyer set up this needless ambiguity.
    – Brian Donovan
    Commented May 7, 2017 at 13:50

1 Answer 1

Reset to default
2

The provision

The Author offers the Publisher an option to acquire the publishing rights under the condition of this Agreement of other works by the Author considered suitable for German publication.

is, unfortunately, fatally ambiguous because "other works by the Author considered suitable" can be read (by a properly motivated lawyer) as meaning either "other works that the author considers suitable" or "other works written by the author that the publisher considers suitable."

Having said that, it seems to me rather obvious that the intention of the provision was to say this:

The Author offers the Publisher an option to acquire the publishing rights under the condition of this Agreement of other works written by the Author and considered by the Publisher to be suitable for German publication.

or, more succinctly, this:

The Author offers the Publisher an option to acquire the publishing rights under the condition of this Agreement of other of the Author's works considered suitable for German publication.

I say this because the alternative interpretation—

The Author offers the Publisher an option to acquire the publishing rights, under the condition of this Agreement, of other works considered by the Author to be suitable for German publication.

—has the problem of seeming to apply to other works by any author, since the second mention of "the Author" in this interpretation arises only in connection with considering other works suitable for German publication, not in connection with "the Author" being the author of them. So if I am "the Author" and I conclude that The Lord of the Rings trilogy is suitable for German publication, this contract (with the original bolded wording interpreted in the second way) would authorize offering the publisher an option to acquire publishing rights to Tolkien's novels on that basis.

This is ultimately no less absurd than interpreting the original wording

The Author offers the Publisher an option to acquire the publishing rights under the condition of this Agreement of other works by the Author considered suitable for German publication.

as if it were making a stipulation not as to "works ... considered suitable for German publication" but as to "the Author considered suitable for German publication." Again, a lawyer could make that argument (for the right consideration), but it's hard to imagine that the person who created the contract might have had that meaning in mind.

So legally there are (at least) three defensible ways to interpret the provision in question; but as a matter of common sense, only the "other works written by the Author and considered by the Publisher to be suitable for German publication" interpretation passes the "would a fair-minded, reasonably intelligent native English speaker be likely to interpret the provision in this way?" test.

Improve this answer

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .