It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to the courthouse. More prosaically, avoiding overreliance on commas can make life easier for the reader.
I recently had occasion to consider one kind of quick fix for this issue. Consider the following provision:
The Vendor will not be liable to Acme or any Buyer, and neither Acme nor any Buyer will be liable to the Vendor, for any damages that are not a reasonably foreseeable consequence of breach.
The offsetting commas indicate that for any damages … is meant to modify both The Vendor will not … and neither Acme nor any Buyer will … . But someone might be willing to argue the point and claim that the Vendor isn’t liable to Acme or any Buyer, period.
And as is, this provision could cause a reader miscue—you might not realize that the opening phrase isn’t self-contained until after you read the second comma and what follows. So I suggest that you revise this provision to read as follows:
The Vendor will not be liable to Acme or any Buyer for, and neither Acme nor any Buyer will be liable to the Vendor for, any damages that are not a reasonably foreseeable consequence of breach.
By moving for before each comma—in effect subdividing a single prepositional phrase, namely for any damages …—you make it clear that in both instances something is yet to come. That makes life easier for the reader and eliminates any possibility of misunderstanding.
On the subject of commas (but not related directly to your post), can you shed some light on why contracts almost never use the serial comma?
Pia: The serial comma? We’re still wrestling with witnesseth! Ken
Ken –
How about defining the group Acme and any Buyer collectively as “Buyer Group” earlier in the Agreement and then having the clause restated as:
Neither Vendor nor Buyer Group shall be liable to the other for any damages …
What say you to that?
Dave: There are plenty of ways to fix overreliance on a comma. This post is about just one of them, and it’s not necessarily the best one in this context. Since this post was intended to illustrate a point, it wouldn’t make sense for me to investigate alternatives, but I have two thoughts regarding your fix: First, unless I’m going to get sufficient mileage out of the defined term Buyer Group, I’m not going to use it. And second, your shall fails the “has a duty” test. (Yes, I’m the shall police!) Ken
Ken,
Thanks for this suggestion. It is a quick fix and works.
Ken–
Couldn’t you just write two sentences and avoid the need to worry about commas?
Patrick: Sure you could: as I mentioned in my response to Dave, you could address this issue in various ways. But in some contexts, the economy offered by an offsetting-commas structure will make it more efficient to tweak that structure rather than scrapping it in favor of an alternative approach. Ken
The increased clarity after changing the commas and including “for” in the first part is amazing. Thanks.