CONTRA PROFERENTEM - QA/ UAE

CONTRA PROFERENTEM - QA / UAE

By Fawzan Rafeek MRICS MCIArb

The “Contra proferentem” (literal translation from Latin is “against the offeror”), also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

Law - Doctrine of “Contra Proferentem”

The Doctrine of Contra Proferentem is generally applied by the Judges in the later case where a contract appears ambiguous to them. In other words, the Judge will be more oriented towards the interpretation which goes against the party who has inserted the ambiguous or the disputed clause in the agreement.

“Contra Croferentem” Principle

The contra proferentem principle essentially states that if there is any doubt about the meaning or scope of an exclusion clause, the ambiguity should be resolved against the party seeking to rely on the exclusion clause on the basis that parties are not lightly to be taken to have intended to cut down the remedies.

“Contra Proferentem” rule

The contra proferentem rule states, broadly, that where there is doubt about the meaning of the contract, the words will be construed against the person who put them forward.

Common Law

The logic behind this rule is that a party who imposes terms on another should make those terms clear and should be the one to suffer the consequences if they do not. Originating from the case of Canada Steamship Lines Ltd v The King in 1952, the relevance of the contra proferentem rule has been extensively debated over the past few years. However, the recent judgment in the case of Persimmon Homes Limited and Others v Ove Arup & Partners Limited and another [2017] EWCA Civ 373 the Court of Appeal confirmed that, the contractual interpretation rule of contra proferentem is still relevant today and should not be forgotten.

Qatari and UAE Law

In Qatar a similar principle exists with one important difference, ambiguity will be construed in favour of the obligor. The distinction with the position under English law, where ambiguity will always be construed against the drafter, is that in Qatar, ambiguity can be construed against either party, dependant on which party owes the obligation under the Article 170 of the Qatari civil code in this respect “Any doubt in the wording of the contract shall be interpreted in favour of the obligor. However, where the contract contains a clause discharging a party from liability, such provision shall be construed narrowly”. Furthermore, Article 266 of the UAE’s Civil Transactions Act Code provides that ‘doubt is construed in favor of the debtor’.

As conclusion, the main thing to take away from “Contra proferentem” is to make sure your contracts are clear and free of ambiguities.