Dealing with Inconsistent Agreements

Dealing with Inconsistent Agreements

      In a recent decision from the Delaware Chancery Court, it was called upon to consider whether the words and the numerals describing what should be the same, were in fact inconsistent with one another. In this case, in several instances the agreement read “fifteen (30)”. The court needed to determine whether the written out “fifteen” or the numeric “30” would control. In this instance, the court determined that the written out term, rather than the numerals, would control Fetch Interactive Television, LLC v. Touchstream Technologies, Inc., No. 2017-0637-SG (Del. Ch. Jan. 2, 2019).

      While this dispute was not governed by the Uniform Commercial Code, the court’s decision was in part based upon Section 3-114 thereof, which provides “words prevail over numbers.” Finding that to be the rule under the UCC, the court carried this rule over to a more general contract analysis.

      This decision is discussed in Delaware Corporate & Commercial Litigation Blog in a January 21, 2019 posting Words Prevail Over Conflicting Numbers in Contract. HERE IS A LINK to that posting. It in turn links to commentary from Ken Adams, the author of A Manual of Style for Contract Drafting, where he cautions that this may not always be the best rule.