Posted by Margaret Daisley
What is The Law, after all, but a skill with language? And, whether used orally in court or across a conference table, or used in what we still refer to, archaically, as the “print” format, doesn’t it all boil down to who can use language and all its components to the best advantage? Whether to come to agreement or persuade or accuse or confirm that A, B, and C will do E, F, and G, it seems to me that the one of the most important skill sets needed for a successful practitioner of the law revolve around a high sense of literacy. An expertise in the language. A love of letters, and everything that follows: grammar, punctuation, spelling, correct word usage, and yes, even a sense of style, or at least an appreciation of it.
And so, with this belief coloring my admiration for The Law and its practitioners, I can only say I was shocked – shocked! – to read the story of “The Tragedy of the Comma” on a Carolyn Elefant blog in August. As originally reported in the Halifax, Nova Scotia Chronicle Herald
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 commission made their ruling “according to the rules of punctuation,” Elefant’s column notes, saying that the “second comma” (after “five-year terms”) is the culprit, making it seem as if the one-year/five-year clauses constitute an either/or situation. They felt that the absence of the comma would have made it clear that the one-year escape clause phase could not commence until the five-year use clause phase was fulfilled.
But eliminating the comma is not the problem, as Elefant and many others have pointed out. Elefant suggests “The clause ought to be split [into two sentences] 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.
Now that’s what I would call beautiful legal writing. Clear and concise – though I would argue that a hyphen is needed for the adjectival phrase in the last line (“one-year prior notice”). However, Elefant’s version even has a sense of style, with its repeating subject and verb and touch of alliteration. One might argue that the offending, very expensive, and poorly-written contract clause could now be construed as poetic:
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 periods,
Unless and until terminated
By one-year notice in writing
By either party.
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