Drafting Without Punctuation?

A participant at my recent seminar in Ottawa reminded me of something I’d never paid much attention to—the idea that one should draft without punctuation. It’s a hoary old notion that still lingers in Commonwealth jurisdictions. Here’s what an Australian text has to say on the subject (footnotes omitted):

Traditional legal drafting uses punctuation sparingly. This has been the practice from the earliest times. …

This approach probably reflects a belief among lawyers that statutes were largely unpunctuated when they left the drafter, and that any punctuation later added was done at the behest of the printer, not the author. This belief David Melinkoff has convincingly shown to be misconceived. It did lead, however, to the attitude, once prevalent judicially, that punctuation played little or no part in construing legal documents. …

But that is no longer the prevalent view. The modern style of legal drafting uses punctuation for the same reason as any other careful prose uses punctuation—to give guidance about meaning.

Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 139–40 (2001)

But don’t be too quick to assume that the no-punctuation wackiness is behind us. I found this in a 2001 contract drafted in England:

[T]he headings and punctuation in this agreement are for convenience only and shall be ignored in its interpretation ….

And in this July 2009 post on Language Log, Geoff Pullum wrote of his puzzlement at encountering a lack of commas in a publishing contract he had been asked to sign.

Here’s my suggestion regarding punctuation: Use standard punctuation, but avoid structuring your language so that a lot is riding on the presence or absence of a comma. A disgruntled contract party might be inclined to fight over a comma, and tribunals have been known to ignore an inconvenient comma or attribute cosmic meaning to an insignificant comma.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

4 thoughts on “Drafting Without Punctuation?”

  1. Ken, this one still lingers in some of the fustier backrooms of English legal practice. Strangely, full stops (periods) seem to be allowed, but not other punctuation. Even where it is not encountered directly, I sense a reticence about using punctuation among some draftsmen, as if folklore about the dangers of punctuation silently fills their dreams.

    I would put “no punctuation” on about the same level as using the word “witnesseth” in contracts, or using engrossment paper with red lines down each margin (not sure if this one will mean anything to your US readers).

    • As I write this, I am reviewing a contract arrived from the UK that is entirely innocent of periods, apart one that concludes one of the definitions. It is presumably a typo.

  2. The biggie in this area is of course the distinction between integrated and supplementary relative clauses. The difference in truth conditions can be huge:

    The company’s managerial employees who work in Connecticut will not be eligible for this benefit.

    (The company has managers in all fifty states and wants to exclude only the people in Conecticut.)

    The company’s managerial employees, who work in Connecticut, will not be eligible for this benefit.

    (All managerial employees are excluded. And by the way, all of them are at the Hartford office.)

    A lot of people might think that this is where the which/that rule of Fowler and so many others pays off with a big dividend. But it doesn’t do the job even if you respect it. People have forgotten about cases where a preposition precedes the “which”, which makes replacement by “that” impossible:

    This does not apply to state holidays on which no employees perform their regular duties.

    (It applies to all state holidays, except those very few when absolutely no one is at their post.)

    This does not apply to state holidays, on which no employees perform their regular duties.

    (It doesn’t apply to any state holidays. And by the way, on state holidays nobody is working anyway.)

    Your advice is exactly right: avoid being caught in a place where your only hope is to get a judge who correctly understands the punctuation rule and semantics for relative clauses. The examples above reflect the truth about English grammar; but God help you if you are forced to rely on the comma distinction and nothing else, because some damn fool will say he can’t see the difference. So re-draft!

  3. And this touches on a point that irritates me to buggery:

    When I type “the splodge, that…” or “the splodge which…”, Mr Gates’ grammar police insist on the AmE usage, which doesn’t allow for either of these comma arrangements. In this instance, BrE is different (albeit probably less “correct”) than AmE.


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