Seminar ideas: vague words


How likely is "likely"?

Students were asked how they would interpret a rule entitling patients to see their medical records unless it was "likely" that the disclosure would compromise a confidential source.

If no possibility of compromise was described as a 0% chance, and certain compromise was described as a 100% chance, what figure would they give as the threshold of "likely"? They were asked to think about it for a moment but to keep their answer to themselves until everyone had decided. Then each answered in turn.

Although many students suggested 51%, the responses were surprisingly diverse, sometimes ranging in a well-attended seminar from 1% to 99%.

The lower figures seemed to me more thoughtful. Since the purpose of the exception is to prevent the release of confidential information, would the legislators have wanted the precaution to fail in almost 50% of cases?

Whatever anyone's preferred figure, does such vagueness have a place in legal drafting?

How big is "small"?

A leasehold covenant forbade the tenant to erect an external sign "except for a small sign giving the name and nature of the business". The tenant puts up a sign and they argue about whether it is small.

Few landlords would want to try to enforce such a vague covenant through the courts, especially as they would have a better chance of success suing their solicitor for drafting an unenforceable clause.

How would you avoid the problem?

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