Reader Steven Sholk forwarded to me an email he had received from Scribes, the American Society of Legal Writers, with the subject line “Grammar Tip No. 79 — Punctuation As A Basis for Interpretation.”
It dealt with a contract provision at issue in Plymouth Mutual Life Insurance Co. v. Illinois Mid-Continent Life Insurance Co., 378 F.2d 389, 390 (3d Cir. 1967) (PDF here). Here’s the provision in question:
No later than one (1) week from the date of the signing of this Agreement, Plymouth and National, at their mutual expense, shared equally, shall send an impartial professional insurance adjuster (Irving Javer, of the Norman Reitman & Co., Rockefeller Plaza, New York City, New York, or if he is not available another impartial professional insurance adjuster mutually satisfactory to Plymouth and National) to Boston to inspect and study all of the books … in the possession, custody or control of Progressive Insurance Agency, Inc. … .
The issue was whether the report that Javer produced was acceptable, even though when he produced it he was no longer employed by Norman Reitman & Co. In other words, was the reference to Javer’s employer “merely words of description, identifying Javer,” or “a limitation on his acceptability as a neutral adjuster”?
In deciding that the reference served to identify Javer, one reason the court offered related to punctuation: “Here the words ‘of Norman Reitman & Co.’ are set off by commas, inappropriate punctuation if the words were intended to be a limitation rather than description.”
I suggest, almost fifty years on, that the commas are irrelevant. There’s no basis for suggesting that omitting the comma after “Javer” would have affected interpretation. So that part of the court’s opinion doesn’t make sense.
But of more general interest is the context offered in the Scribes email:
Punctuation is often used as a basis for interpreting a contract, settlement agreement, or other document. This fact alone justifies the expenditure of client funds in proofreading and double checking the contents of documents.
Even the lowly comma can make the difference in a case, when used consistently and in conformity with commonly applied rules of grammar. Recognized grammar treatises might be offered to support the arguments.
I suggest that this is exactly the wrong way to approach use of commas in contracts. You can’t expect those who draft contracts to understand the implications of commas. You can’t expect anyone interpreting a contract to understand the implications of commas. And you sure can’t expect courts to understand the implications of commas.
This case offers an example of that, and it’s hardly an outlier. In searching on EDGAR for court opinions involving offsetting commas, the first opinion I saw was Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 36, 210 P.3d 263, 270. That case cited another case, Goetz v. Am. Reliable Ins. Co., 844 P.2d 366, 370 (Utah Ct. App. 1992). In both cases, the court invoked offsetting commas in holding that the contract provision at issue was unambiguous. I think that in both cases the court was mistaken.
So instead of hoping that commas allow your intended meaning to prevail, express that meaning in a way that precludes confusion. In the provision at issue in Plymouth Mutual, that could have been achieved by adding currently after Javer’s name, by moving Javer’s affiliation and address to a notices provision, or some other way.
Why does Scribes instead suggest that you rely on commas and prepare yourself for any arguments? Perhaps because the person who prepared this email is a litigator. As I’ve demonstrated sporadically, litigators are equipped to fight over confusing contract language, but their advice on how to approach contract drafting is often unreliable.