Tag Archives: prefatory language

PREFATORY CONTRACT LANGUAGE CANNOT BE USED TO CREATE AN AMBIGUITY WITH OPERATIVE PROVISIONS

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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. 1st 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.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

THE PREFATORY WHEREFORE CLAUSES IN AGREEMENTS MATTER

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When drafting agreements, the language matters. This is because agreements are not intended to be construed in a vacuum. Sections of an agreement are not to be interpreted in isolation. Agreements are intended to be constructed in the context of the ENTIRE agreement. This is why there is tremendous value in the drafting of the agreement and the negotiation of the agreement. Neglecting this value can bring a large number of headaches, headaches that cost money and lead to undesirable consequences.

When drafting agreements, it has become routine to include prefatory clauses.  Sometimes, these are known as the “Wherefore clauses,” that setup up the stage of the agreement before the numbered sections or paragraphs kick in. These Wherefore clauses show up in contracts and settlement agreements, and they matter.

In a recent case, City of Gainesville v. Parkwood Alachua Land Investments, Inc., 2025 WL 2792459 (Fla. 1st DCA 2025), the issue on appeal was contract interpretation, and particularly the Wherefore clauses.  Indeed, this is how the First Ditrict began its opinion:

This is a breach-of-contract case. When we are called to assess a trial court’s enforcement of a contract’s terms, as we are here, the supreme court tells us that we are “bound by the plain meaning of the contract’s text.”  One or more provisions in a contract’s text, however, “cannot be viewed in isolation from the full textual context of which they are a part.”  Rather, “proper interpretation requires consideration of ‘the entire text, in view of its structure and of the physical and logical relation of its many parts.’ ”  This is so because “the goal of interpretation is to arrive at a fair reading of the text by determining the application of the text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” “Context is a primary determinant of meaning.” 

At issue here is whether initial paragraphs in the parties’ contract—paragraphs that do not define either party’s rights or obligations—can still be used to provide context governing the meaning of otherwise plain text appearing under the City of Gainesville’s (as the going concern known as Gainesville Regional Utilities, or “GRU”) specified obligation to pay rebate fees to the developer Parkwood Alachua Land Investments, Inc. (“Parkwood”), when certain conditions precedent occur. There was a bench trial, after which the judge applied the operative text literally, without considering the prefatory language for context, and rendered judgment against GRU for money due under the contract. GRU argues a different plain meaning of the text, basing its reading on the clear purpose of the whole contract, which is spelled out by introductory (or prefatory) language. Following the supreme court’s lead regarding “whole text,” or contextual, application of statutory and contractual provisions, we agree with GRU and reverse.

City of Gainesville, supra (internal citations omitted.)

As you can tell from the start of this opinion, the First District reversed because the trial court did not apply meaning or application to the Wherefore clauses. The contract itself, here, does not matter. What matters is that contract interpretation requires a review of the entire contract, not just sections in isolation. See City of Gainesville, supra (“Our objective ‘is to ascertain the meaning and intent of the parties as expressed in the language used.” As mentioned in the beginning, when we do so, we cannot read a textual provision in isolation-something the trial court erroneously did here.’) (citation omitted). Here, the trial court did not consider the Wherefore clauses, and this was a big no-no the First District:

In construing the [Agreement], the trial judge zeroed in on paragraphs nine and ten and expressly read them without considering the prefatory text or the circumstances surrounding the contract’s execution. The judge explained in her order that the prefatory text “may not be relied upon if they will cause ambiguity in an otherwise unambiguous contract.” This approach incorrectly treated the question of ambiguity as strictly binary—so making the decision whether to look at any other text in the contract at all wholly dependent on whether the text in question, by itself, is ambiguous in the first place. Construction canons are not to operate this way. “Viewed properly as rules of thumb or guides to interpretation, rather than as inflexible rules,” these canons “can aid the interpretive process from beginning to end,” so “[i]t would be a mistake to think that … interpreters [must] make a threshold determination of whether a term has a ‘plain’ or ‘clear’ meaning in isolation, without considering the statutory context and without the aid of whatever canons might shed light on the interpretive issues in dispute.” 

City of Gainesville, supra (internal citations omitted).

Remember, the language in contracts matter, including language uses in the prefatory Wherefore clauses.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.