Contract drafting and interpretation matters.

A case dealt with the potential conflict with prefatory language in an agreement compared with operative provisions in the agreement. The trial court held that the operative provisions control. I discussed this case here where the appellate court reversed based on the prefatory language.

But, through a motion for rehearing, the appellate court reconsidered its position and affirmed the trial court based on the operative provisions, mainly that the prefatory language cannot be used to create an ambiguity with operative provisions. Consider this explanation in affirming the trial court:

Because the trial court correctly found that the initial language in the contract was prefatory and could not be used to create an ambiguity in the remainder of the contract, we affirm the final judgment.

In interpreting a contract we consider the entire agreement.  But the prefatory clauses at the start of a contract are “not an operative provision of an otherwise unambiguous agreement.”  To the extent that there is any conflict between the prefatory language and the operative provisions of the contract, the operative provisions prevail. 

The Orlando Lake Forest Venture case that the trial court cited in the final judgment is instructive. Similar to here, the issue there was whether the prefatory language in a contract restricted the broader language in the operative part. The specific issue in Orlando Lake Forest Venture was whether the mention of a shopping center in the prefatory language of the contract concerning development of a property restricted development to a shopping center, notwithstanding the lack of any restriction in the operative part of the contract. The court in Orlando Lake Forest Venture held, “Even assuming that Appellee’s proffered construction of the whereas clause manifests an intent to restrict the development of all of Appellant’s property to a shopping center, we conclude that the whereas clause is prefatory and not binding.”  The court further stated, “The operative portion of the document is both comprehensive and unambiguous. Under these circumstances, the prefatory language should not be considered to vary the unambiguous terms of the operative portion of the document.” 

Statutes are interpreted in the same manner as contracts.  In construing statutes, the Florida Supreme Court has recognized the limitation of prefatory language, stating “It is well settled that such ‘prefatory language’ cannot expand or restrict the otherwise unambiguous language of a statute.”  “Although prefatory language may aid a court to determine legislative intent when the operative terms of a provision of law are ambiguous, such language does not control interpretation of the operative terms of that provision.”

Likewise, “[t]he rules used in construing statutes are in general applicable in construing the provisions of a Constitution.”  In construing the Second Amendment to the United States Constitution, the Supreme Court held, “That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. . . . But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” 

City of Gainesville, Florida v. Parkwood Alachua Investments, Inc., 51 Fla.L.Weekly D707a (Fla. 1^st DCA 2026) (internal citations omitted).

The objective in drafting any contract is to use clear, unambiguous language. Remember, regardless of the prefatory language used to set the stage for the operative provisions, it is the operative provisions that drive the agreement.