Even the word "the" can come back and bite you hard

19 Apr 16

A federal district court in Massachusetts has reminded all of us legal drafters that even the most trivial article in the English language can make or break your client's case.

An employer sought to enforce a 2005 confidentiality and non-compete agreement against an employee who had contemporaneously signed a separate employment agreement. The employer required the employee to sign a new employment agreement in 2012. The new employment agreement lacked any integration clause (ie, it lacked the usual "these are the only terms that apply between the parties" provision). Nevertheless, in ruling that the 2012 agreement superseded both the 2005 employment agreement and the 2005 confidentiality agreement, the court focused on the first paragraph of the 2012 document that introduces the rest of the agreement: "The following are the terms of employment: ….".
Literally italicizing the term "the" in its analysis, the court held that the use of the definite article in the 2012 agreement conveyed an element of exclusivity, and consequently superseded both prior agreements.

Makes you wonder how any of us can ever sleep at night.