Law.com Blog Network

About The Bloggers

Blogroll

The Tragedy of the Comma

This past week, lots of blogs, ranging from Wall Street Journal Law Blog to Golden Practices (as well as all of these others), are carrying commentary on the tragedy of the misplaced comma. This news story gives the details:

A grammatical blunder may force Rogers Communications Inc. to pay an extra $2.13 million to use utility poles in the Maritimes after the placement of a comma in a contract permitted the deal’s cancellation. ... Language buffs take note -- page 7 of the contract states: The agreement "shall continue in force for a period of five years from the date it is made, and thereafter for successive five-year terms, unless and until terminated by one year prior notice in writing by either party." Rogers’ intent in 2002 was to lock into a long-term deal of at least five years. But when regulators with the Canadian Radio-television and Telecommunications Commission parsed the wording, they reached another conclusion.

The validity of the contract and the millions of dollars at stake all came down to one point -- the second comma in the sentence. Had it not been there, the right to cancel wouldn’t have applied to the first five years of the contract and Rogers would be protected from the higher rates it now faces. "Based on the rules of punctuation," the comma in question "allows for the termination of the (contract) at any time, without cause, upon one-year’s written notice," the regulator said.

My own take is that with or without the comma, the clause is confusing and suggests that the parties could cancel either the initial five-year contract term or the successive five-year terms upon one year's notice. I don't think eliminating the comma makes the clause any clearer. The clause that ought to be split in two to emphasize the durability of the first five-year term and the diminished expectation of continuation in the subsequent five-year terms: 

The agreement shall continue in force for a period of five years from the date it is made. Thereafter, the agreement shall continue for successive five-year terms, unless and until terminated by one year prior notice in writing by either party.

It's easy to criticize drafting errors in hindsight, but the only way we lawyers can learn from them is when we're shown the preferred alternative. I've tossed my idea into the ring, but let me hear from you since I am not that experienced in drafting. How would you have drafted this clause to reflect the parties' intent?

Posted by Carolyn Elefant on August 15, 2006 at 03:24 PM | Permalink | Comments (1)

Comments

 
 
 
About ALM  |  About Law.com  |  Customer Support  |  Privacy Policy  |  Terms & Conditions