DOCUMENTS: PATENT AMBIGUITY AND LATENT AMBIGUITY

A PROJECT REPORT SUBMITTED TOWARDS FULFILLMENT OF THE SUBJECT TITLED:

‘LAW OF EVIDENCE’

Submitted by: Rajeev Ranjan, Roll No.-1360, 4th Sem., 2nd Year, B.A.,L.LB(Hons.)

Under the guidance of: DR.P.K.V.S.RAMA RAO (Faculty of Law Of Evidence)

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
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 DECLARATION

The researcher hereby declares that this research paper is prepared by the
researcher with the help of only those sources which are mentioned in the
bibliography part of this paper ,foot notes on the last of each page. This research
paper is not a copy of any one’s research paper as per the knowledge of the
researcher.

This research paper is firstly presented to DR. P.K.V.S.RAMA RAO, the faculty of
Law of Evidence in The Chanakya National Law University, Patna. Before this, this
paper has never been submitted to any other teacher/professor or any other
school/college/university.

Rajeev Ranjan

19/04/2017

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 ACKNOWLEDGEMENT

I would like to thank my faculty Mr. P.K.V.S. Rama Rao Sir whose guidance helped
me a lot with structuring my project.
I owe the present accomplishment of my project to my friends Shivam Pant,
Shubham Priyadarshi, Rakesh Ranjan and Chandra Mohan who helped me
immensely with materials throughout the project and without whom I couldn’t have
completed it in the present way.
I would also like to extend my gratitude to my parents and all those unseen hands
who helped me out at every stage of my project.

THANK YOU,
RAJEEV RANJAN
Roll No. 1360

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S.No PARTICULARS PAGE

1. Acknowledgement 3

2. RESEARCH METHODOLOGY 5-6

3. CHAPTER 1 07-09

4. CHAPTER 2 10-12

5. CHAPTER 3 13

6. BIBLIOGRAPHY 14

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of this research paper is to present a detailed study on patent and latent
ambiguity.
Scopes and Limitations:
The researcher has used the doctrinal method and has relied on the secondary sources for the
content of the research paper.
Owing to the large number of topics that could be included in the project, the scope of this research
paper is exceedingly vast. However in the interest of brevity, this paper has been limited to the
topics which deal with social aspect of the topic only.
.Research Questions:
The three research questions are as follows:
1.What is the concept of patent ambiguity?
2 What is the concept of latent ambiguity?
3 How both these ambiguities affect the law of evidence ?
Chapterization:
The project has been divided into three chapters:
 The first chapter deals with the introduction part.
 The second chapter deals with the legal provisions .
 The third one deals with the conclusion part.
Sources of Data:
The researcher has relied on the following secondary sources of data:

• Books
• Websites
• Articles

Method of Writing
The method of writing followed in this project is both analytical and descriptive.

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Mode of Citation
The researcher has followed a uniform mode of citation in this project.

Hypothesis Test
Before going for the research for this topic, the researcher had following hypothesis in his mind:
The researcher firmly believed that the sections from 93 to 97 in the Indian Evidence Act,1872
were very important but sometimes they were misinterpreted and hence there was a need to
check these sections.

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 CHAPTER-1

INTRODUCTION

Ambiguity:
"The law is a profession of words."1 By means of words contracts are created, statutes are enacted,
and constitutions come into existence. Yet, in spite of all good intentions, the meanings of the
words found in documents are not always clear and unequivocal. They may be capable of being
understood in more ways than one, they may be doubtful or uncertain, and they may lend
themselves to various interpretations by different individuals. When differences in understanding
are irresolvable, the parties having an interest in what is meant may end up in litigation and ask
the court to come up with its interpretation. In the eyes of the law, when this kind of situation
arises, the contract or the legislative act contains "ambiguity ". Paradoxically enough, the word
ambiguity itself has more than one interpretation.
One of the senses, what we call the general meaning, has to do with how language is used by
speakers or writers and understood by listeners or readers. Ambiguity occurs where there is lack
of clarity or when there is uncertainty about the application of a term. It is this sense of ambiguity
that generally is meant within the law. The other sense, the restricted meaning, is concerned with
certain lexical and grammatical properties that are part of the very fabric of language, irrespective
of anyone's usage or understanding. A word may have multiple definitions or a group of words
may partake of more than one grammatical parsing.
Linguists and grammarians have extensively investigated these features of language.
An ambiguity is a doubtfulness or uncertainty of signification from a word's being susceptible of
different meanings. In law the term has received a more extensive signification, and relates to
circumstances extrinsic and beyond the definition of a word. Although there is some confusion
among the authorities, there is nevertheless a broad and plain distinction between patent and latent
ambiguities in written instruments.
It is a type of uncertainty of meaning in which several interpretations are plausible. It is thus an
attribute of any idea or statement whose intended meaning cannot be definitively resolved
according to a rule or process with a finite number of steps The concept of ambiguity is generally
contrasted with vagueness. In ambiguity, specific and distinct interpretations are permitted
(although some may not be immediately obvious), whereas with information that is vague, it is

1
This is the opening sentence in David Mellinkoff's monumental work, The Language of the Law, Little,
Brown & Co., Boston: 1963.

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difficult to form any interpretation at the desired level of specificity. Context may play a role in
resolving ambiguity.
Patent and latent ambiguity:
By the term patent ambiguity, in its broadest sense, may be understood an ambiguity appearing on
the face of the instrument. Its frequent use in this way, in connection with the general proposition
that a patent ambiguity admits of no explanation by matters extrinsic, has occasioned no
inconsiderable degree of confusion, and led Mr. Justice STORY to think there must be an
intermediate class of ambiguities, comprising those instances where the words are equivocal and
yet admit of precise and definite application, by resorting to the circumstances under which the
instrument was made. As an example, he puts the case of a written contract, assigning the party's
interest in the freight of a ship; saying parol evidence would be admissible of the circumstances
attending the transaction, to ascertain whether the word "1 freight" referred to the goods on board
the ship or to an interest in the earnings of the ship. This, however, falls exactly within the general
definition of a patent ambiguity. The terms used are in themselves of doubtful meaning, and
consequently admit of more than one interpretation according to the subject matter in
contemplation of the parties. The ambiguity is not latent in any proper sense, It arises from the
known infirmity of language, it is inherent in the instrument, appearing on its face, and evincing a
difficulty at the very moment of its perusal and yet it admits of explanation. The courts of law
admit evidence of particular usages and customs, in aid of the interpretation of written instruments,
whenever from the nature of the case a knowledge of such usage and customs is necessary to a
right understanding of the instrument. Parol evidence may also be given to apply the written
instrument to the subject-matter, when used by particular persons and applied to particular
subjects. It is perfectly right and consistent with fair dealing to give effect to language used in a
contract as it is understood by those who make use of it..
Our object, however, is to point out the distinction between patent and latent ambiguities. In order
more clearly to mark that difference, it will be necessary to note that there are two kinds of patent
ambiguities, and a correct knowledge of these is essential in order to avoid their confusion with
latent ambiguities; which latter are of a perfectly distinct kind. Some patent ambiguities allow a
resort to extrinsic evidence, and others do not, and this latter class only seem appropriately to
belong to the ambiguitas patens of which Lord Bacon writes, an ambiguity is patent in this sense,
when the mere perusal of the instrument shows plainly that something more must be added before
the reader can determine which of several things is meant by it; and then the rule is inflexible that
no evidence to supply the deficiency can be admitted. The admission of such evidence in many
cases would be, as Lord Bacon said, “to make that pass without deed, which the law appointed
shall not pass but by deed." In other words, it would be departing from the great leading principle
which prevails on this subject, and allowing oral evidence to come in and ascertain that which the
writing has left to the widest latitude of conjecture. The Master of the Rolls, in the case of Colpoys
v. Colpop, has directly pointed out the fallacy of saying, that a patent ambiguity is one which
admits of no explanation by extrinsic evidence.
"When the person or thing is designated," he said, " on the face of the instrument, by terms
imperfect and equivocal, admitting either of no meaning at all by themselves, or of a variety of

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different meanings referring tacitly or expressly for the ascertainment and completion of the
meaning to extrinsic circumstances, it has never been considered an objection to the reception of
the evidence of those circumstances that the ambiguity was patent manifest on the face of the
instrument." When a legacy is given to a man by his surname, and the Christian name is not
mentioned, is not that a patent ambiguity? Yet it is decided that evidence is admissible. So where
a gift is of the testator's stock, that is ambiguous. It has different meanings when used by a farmer
and a merchant.
The definition of a patent ambiguity falls short of supplying a practical test, by which to determine,
a priori, whether a given instance of ambiguity apparent on the face of the writing is explainable
or not by extrinsic evidence. It will not do to say, therefore, that a patent ambiguity (meaning
thereby merely an ambiguity appearing on the face of the instrument) cannot be explained by
evidence aliunde. Though such remarks are frequent in the books.
A patent ambiguity in a written instrument, which requires that something be added in order to
make it intelligible, cannot be explained by evidence extrinsic, and renders the instrument void.
But where an expression is used capable of being satisfied in more ways than one, there is an
ambiguity on the face of the instrument, and extrinsic evidence is admissible; "for the law is not
so unreasonable as to deny to the reader of an instrument the same light which the writer enjoyed."
It may happen, and frequently does, that the very evidence introduced to elucidate an explainable
patent ambiguity, shall result in bringing to light a latent ambiguity, not before known to exist. A
latent ambiguity would seem at first view to be easily understood, and yet a difficulty may arise
with respect to that also from the loose manner in which the term has sometimes been used. Perhaps
the clearest definition of this species of ambiguity is the one given by Mr. Sugden. " Ambiguitas
latens," he says, “is that which seems certain and without ambiguity, for anything on the face of
the instrument, but there is some collateral matter out of the instrument that breeds the ambiguity."
and as it is raised by extrinsic evidence, it may be fairly dissolved by the same means. It is in the
nature of a latent ambiguity never to appear on the face of the writing, but to lie hidden in the
person or thing, or subject whereof the writing speaks. The location of lands where the boundaries
are distinctly pointed out in the deed, has been called explaining a latent ambiguity.

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 CHAPTER-2

LEGAL PROVISIONS

Relevant sections: Section 93 to section 97 of the Indian Evidence Act, 1872

Section 93: Exclusion of evidence to explain or amend ambiguous document2

When the language used in a document is, on its face, ambiguous or defective, evidence may not
be given of facts which would show its meaning or supply its defects.
Illustrations:
(a) A agrees, in writing, to sell a horse to B for "Rs.1000 or Rs.1500". Evidence cannot be given
to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were
meant to be filled.
Section 94. Exclusion of evidence against application of document to existing facts3
When language used in a document is plain in itself, and when it applies accurately to existing
facts, evidence may not be given to show that it was not meant to apply to such facts.
Illustration: A sells to B, by deed, "my estate at Rampur containing 100 bighas". A has an estate
at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to
be sold was one situated at a different place and of a different size.
Section 95. Evidence as to document unmeaning in reference to existing facts4
When language use in a documents is plain it itself, but is unmeaning in reference to existing facts,
evidence may be given to show that it was in a peculiar sense.
Illustration: A sells to B, by deed, "my house in Calcutta" A had no house in Calcutta, but it appears
that he had a house at Howrah, of which B had been in possession since the execution of the deed.
These facts may be proved to show that the deed related to the house at Howrah.

2
As per section 93 of Indian Evidence Act,1872
3
As per section 94 of Indian Evidence Act,1872
4
As per section 95 of Indian Evidence Act,1872

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Section 96. Evidence as to application of language which can apply to one only of several
persons5
When the facts are such that the language used might have been meant to apply to any one, and
could not have been meant to apply to more than one, of several persons or things, evidence may
be given of facts which show which of those persons or things its was intended to apply to.
Illustrations:
(a) A agrees to sell to B, for Rs.1000, "my white horse". A has two white horses. Evidence may
be given of facts which show which of them was meant.
(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether
Hyderabad in the Deckhand or Hyderabad in Sindh was meant.
Section 97. Evidence as to application of language to one of two sets of facts, to neither of
6which the whole correctly applies

When the language used applies partly to one set of existing facts, and partly to another set of
existing facts, but the whole of it does not apply correctly to either, evidence may be given to show
to which of the two it was meant to apply.
Illustration: A agrees to sell to B "my land at X in the occupation of Y". A has land at X, but not
in the occupation of Y and he has land in the occupation of Y but it is not at X. Evidence may be
given of facts showing which he meant to sell.

Interpretation:
Patent ambiguity is an uncertainty that clearly appears on the face of an instrument. Such an
ambiguity will appear in the language of the document. In such documents, the court, reading the
language in the light of all the facts and circumstances referred to in the instrument would not be
able to derive therefrom the intention of the parties.
When used in the context of wills, patent ambiguity is an ambiguity appearing upon the face of the
instrument, for example, a bequest to "some" of the six children of the testator's brother.
Patent ambiguity is also known as intrinsic ambiguity or ambiguitas patens.
A patent ambiguity is that which appears on the face of the instrument, and arises from the
defective, obscure, or insensible language used. In contrast, a latent ambiguity arises from
extraneous or collateral facts which make the meaning of a written agreement uncertain although
the language thereof, on its face, appears clear and unambiguous.

5
As per section 96 of Indian Evidence Act,1872
6
As per section 97 of Indian Evidence Act,1872

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Latent ambiguity is an ambiguity that does not readily appear on the face of a document.
The ambiguity becomes apparent only in the light of knowledge gained from a collateral matter.
Extrinsic evidence can be used to clarify latent ambiguities, but not patent ambiguities.

Case laws:
The first case, Frigaliment Importing Co. v. B.N.S. International Sales Corp.7gets embroiled
in the definition of a chicken. Buyer, a Swiss company, has ordered frozen eviscerated chickens
from a New York wholesaler of poultry. The order called for chickens of two sizes: 1 ½ - 2 pounds,
and 2 ½ - 3 pounds. When the shipment arrives in Europe, Buyer discovers that the larger birds
are all stewing chickens. Expecting broilers and fryers, Buyer cries "foul" and brings suit against
Seller for breach of contract. The issue before the court becomes: "what is chicken?"8 The plaintiff
buyer contends that "'chicken' means a young chicken, suitable for broiling and frying."9 The
defendant insists that a chicken is "any bird of the genus that meets contract specifications on
weight and quality, including what it calls 'stewing chicken'."10 Judge Friendly, who heard the
case, concedes that both meanings are possible. Consequently, he declares that "the word 'chicken'
standing alone is ambiguous ",11 and he decides to look to the contract to see whether it offers any
aid for the interpretation of this word.
The second case, Raffles v. Wichelhaus,12 is notoriously known to law students. The bizarre
events of this English case took place in 1864, before there were telegraphs, telephones, or e- mail.
The buyer purchased bales of cotton that were to be sent from Bombay, India to Liverpool, England
on a ship called the "Peerless". At the time of the making of the contract it was unbeknown to the
parties that there were two different ships by the name of "Peerless". One of them was to leave
Bombay in October, the other in December. The buyer expected the goods to be on the October
ship, whereas the seller planned to place them on the December vessel; neither of them was aware
of the other's intent. When the October Peerless arrived in England, naturally there were no bales
of cotton on it for the buyer. When the December Peerless sailed in to port with the shipment, the
buyer refused acceptance. Seller then brought suit against Buyer. Counsel in support of the
defendant buyer's plea noted that "there is nothing on the face of the contract to show that any
particular ship called the 'Peerless' was meant; but the moment it appears that two ships called the
'Peerless' were about to sail from Bombay there is a latent ambiguity

7
Frigaliment Importing Co. v. B.N.S. International Sales Corp.; Raffles v. Wichelhaus; Interstate
Commerce Commission v. Kroblin.
8
Frigaliment. The legal issue, of course, is whether the seller supplied the buyer with the goods that the
buyer had ordered.
9
Frigaliment.
10
Frigaliment.
11
Frigaliment.
12
2 Hurl. & C. 906, 159 Eng. rep. 375 (Ex.1864).

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 CHAPTER-4

CONCLUSION

Section 93 deals with cases where plainly the words are been described whereas Section 94
deals with cases where meaning cannot be given in such cases no meaning shall be given.
Latent Ambiguity is given under section 95-98 of Indian Evidence Act.
Section 95 deals with cases where the intention is to show the meaning of word in a peculiar
sense.
Section 96 deals with cases where the words are intended for only a particular person.
Section 97 deals with cases where the particular set of facts are to be applied to particular
circumstances.
Section 98 deals with cases to show that words not commonly intelligible character shall be used.

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BIBLIOGRAPHY:
BOOKS:
1. Rao Dr. V. Nageswara Rao, The Indian Evidence Act, Lexis Nexis
2. Lal Batuk, The Law Of Evidence, Central Law Agency.

WEBSITES:
1. ling.ucsd.edu/~schane/law/ambiguity.html
2. legal-dictionary.thefreedictionary.com/ambiguity
3. www.lawweb.in/2013/02/law-of-evidence-part-three.html
4. http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2161&cont
ext=penn_law_review
5. http://grammar.ucsd.edu/courses/00-OLD/ling87/seminar.htm

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