Adjective placement in legal writing

In English, adjectives usually come before the noun. For example: I like French films. But what if you have a list of nouns after the adjective - does the adjective relate to all the nouns or just the first one in the list?

If I say, ‘I like French films, cafés, and chocolate’, do I mean:

• I like 1) French films, 2) cafés, and 3) chocolate.

• I like 1) French films, 2) French cafés, and 3) French chocolate.

There is no general rule of English grammar that an adjective at the beginning of a list qualifies all the nouns in the list. This means that my sentence could be ambiguous. Perhaps it is obvious from the surrounding context of our conversation. Perhaps not.

In legal English writing, particularly in contract drafting, it is important to be clear and unambiguous to avoid costly disputes later on. In a recent English case about the terms of an engagement letter, the court had to decide whether the adjective private in the phrase ‘private placement, offering or other sale of equity instruments’ only qualified the word ‘placement’ or also qualified ‘offering or other sale of equity instruments’. This was important because the parties’ dispute centred on whether a payment was due for a public offering.

The Court of Appeal acknowledged that there was no firm grammatical rule on this point. They looked at the context of the contract as a whole but they also said that ‘unless something in the content of the list or another adjective or determiner within the list suggests otherwise, the reader will naturally tend to assume that an adjective or determiner at the start of a list qualifies the entirety of it.’ They decided that the adjective private qualified the whole list.

The parties could have avoided this dispute by drafting the phrase like this:

“any private placement, private offering or other private sale of equity instruments”

This would have made the phrase more wordy, but clearer. A judge in the case also indicated that the parties could have achieved their intention of covering all forms of equity financing ‘by a simple reference to "any sale of equity instruments"‘.