M J Antony: Tyranny of the typos

Last Updated: Tue, Jan 01, 2013 19:34 hrs

All the hard work done in drafting contracts by shrewd lawyers can come to nought if the typist is weak in grammar and punctuation. In a recent Canadian case between a phone company and a television cable firm, one party lost a million dollar contract because a comma was put in the wrong place. In the Bhopal gas compensation case, crores of rupees were saved in the nick of time when a typing mistake was corrected by the Supreme Court of India.

Such errors have caused litigation, and there is an impressive case law on the subject. Spellcheck and the like in computers have not improved matters; there could be “repetitive systematic computer typographical transmission failure” as argued in a contractual dispute in a leading Supreme Court judgment. In order to avoid such forensic snarls, contracts these days include clauses that try to obviate disputes over mistakes in arithmetic, placing of decimal dots, conversion of currencies and other snares for the unwary.

Still that seems to be not enough. In a case decided by the Delhi High Court last month, there was one page of legalese in the “instructions for bidders” for a railway line but that did not save Supreme Infrastructure India Ltd and Rail Vikas Nigam from going to court over an arithmetical error. In the instructions, there were detailed provisions on how to deal with casual errors but these became the bone of contention.

Supreme Infra, whose quotation was the lowest, was caught in a typo. The unit price did not match the total price. It argued that “there was no arithmetical error and the same was a bona fide human error which occurred on account of fatigue and tiredness of the person filling the tender form as a result of repetitive work”. Since it was an obvious mistake, Rail Vikas Nigam could not act mechanically and must “act with common sense and rationality while deciding the bids”, it was contended.

The government company countered that bidders were not entitled to withdraw, substitute or modify their documents between the deadline for submission of bids and the expiration of the period of bid validity. It pointed out that there was a clear discrepancy between the unit rate quoted and the total price and the rules should be strictly construed.

However, the court accepted the pleas of the private firm, giving five reasons the mistake was not fatal to the bid. The bidder cannot “change in the substance” the offered prices but he is permitted to confirm the correction of arithmetic errors discovered later, the judgment said. One clause specifically provided that where the technical bid is substantially responsive, the employer shall rectify non-material, non-conformities related to the price bid.

The court snubbed the government firm by stating that “if the process of evaluation of bids is to be done so mechanically as done in the present case, and without the use of mental faculties, intellect and exercise of human discretion, the exercise could have been left to be completed by machines/computers”.

A leading Supreme Court case on this issue is W Bengal SEB vs Patel Engineering Co. In that case, the court did not permit correction of 27 mistakes like the conversion rate of Indian, Japanese and US currencies and discrepancy in unit prices quoted. The nature and magnitude of the errors was so huge that permitting correction would change the complexion of the bids, the Supreme Court said.

The US Supreme Court has set a few guidelines in such disputes. It stated in the judgment, Moffet HC Co vs Rochester, that bids could be rejected: first, where the mistake might have been avoided by the exercise of ordinary care and diligence on the part of the bidder; but where the offeree is deemed to have knowledge of the mistake, and second, where the bidder on discovery of the mistake failed to act promptly in informing the authority concerned and request for rectification of clerical mistake.

In another US case of tenders, the typist wrote $400 for $4. The court stated that only when “an error was patent and the true intent of the bidder obvious that such an error might be disregarded”. The error was ordered to be waived.

Printer’s devils and typing mistakes blight legislation, too. In one case referring to the Civil Procedure Code, Afcons Infrastructure Ltd vs Cherian, the Supreme Court remarked that “the mix-up of definitions of the terms judicial settlement’ and mediation’ is apparently due to a clerical or typographical error in drafting, resulting in two words being interchanged”. The same law, the court stated in another judgment, had mixed up the phrases, defendant’s witnesses and plaintiff’s witnesses in the 1976 amendment. These errors are still on the statute book. Perhaps it would help if typists in ministries and law firms are sent to a good English-Vinglish class.

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