Courts can pervert ambiguity doctrine to rewrite unambiguous contracts

Evidence

One such version is that custom will be imported into a contract to explain an ambiguous term. If this were all the decision implied, there could be little objection. That the decision was intended to mean more is, however, unfortunately evident; it is difficult to conceive of a less ambiguous term than ‘full set bills of lading.’ If this term was ambiguous, it was so only in the mind of the court, for in the Dixon, Irmaos case both parties showed by their conduct and admission that they knew what the term meant, and knew that what was tendered was less than a full set of bills of lading - else why the indemnity? The doctrine of ambiguity, therefore, was merely a well-worn handle which the court found convenient to carry out its desires. In fact, the Dixon, Irmaos opinion means that custom will be permitted to substitute a wholly new term for an unambiguous term in the contract. And here lies thr mischief of Dixon, Irmao, for in this view of the case, resort to custom is perverted into a frustration of freedom of contract. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 885

Categorization

• XREF: connects to: Courts hesitate to imply lease conditions, forcing lawyers to draft explicit contingency clauses — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 3411