Also known as: ambiguitas latens · ambiguitas patens · latent ambiguity · patent ambiguity · latent vs patent ambiguity
Written by attorneys — see sources below.
A pair of descriptive labels for uncertainty in the meaning of a donative document or contract. A patent ambiguity appears from the text alone. A latent ambiguity is not apparent from the text but becomes evident only when extrinsic evidence is introduced.
A testator's will devises her brownstone at 15 Beacon Row to her producer. No such address exists, yet she owns only the brownstone at 51 Beacon Row where all holiday specials were filmed. Extrinsic evidence of the transposed address and filming location shows the intended property. The court admits the evidence to identify the lot actually meant to pass rather than allow the gift to fail.
A seller agrees to ship cotton to arrive ex Peerless. Two ships of that name exist, one sailing in October and one in December. Each party reasonably understands a different vessel. The latent ambiguity prevents mutual assent because neither party knows or has reason to know the other's meaning.
The plaintiff and the defendants entered into an agreement at Liverpool. Under this agreement, the plaintiff agreed to sell to the defendants, and the defendants agreed to buy from the plaintiff, 125 bales of Surat cotton guaranteed middling fair merchant's Dhollorah, to arrive ex "Peerless" from Bombay. The cotton was to be taken from the quay. The defendants agreed to pay the plaintiff for the cotton at the rate of 17 d. per pound within a certain time agreed upon after the arrival of the goods in England. The goods arrived by the ship from Bombay at Liverpool. The plaintiff was ready, willing, and offered to deliver the goods to the defendants. However, the defendants refused to accept the goods or pay for them. The defendants filed a plea stating that they meant the ship called the "Peerless" which sailed from Bombay in October. The plaintiff offered cotton from a different ship also called the "Peerless" which sailed in December. The matter came before the Court of Exchequer on demurrer to this plea. Milward argued in support of the demurrer. Mellish argued in support of the plea.
View caseA patent ambiguity is apparent from the text of the document itself. A latent ambiguity appears only when extrinsic evidence is examined. The distinction is now treated as descriptive rather than outcome-determinative.
Yes. When a will describes property the testator does not own, extrinsic evidence may show that the description matches another parcel the testator did own and thereby identify the intended devise.
It can. When each party reasonably attaches a materially different meaning to a term and neither knows or has reason to know of the other's meaning, there is no mutual assent and no contract is formed.
If each party knows or has reason to know the other's different meaning, there is still no mutual assent and the term is not enforceable. The rule protects only the comparatively innocent party who lacks such knowledge.
…"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, and parol evidence may be given for the purpose of showing that the defendant meant one "Peerless" and the plaintiff another. That being so, there was no consensus ad idem, and therefore…