Lawyers Beware the Million Dollar Comma
In the intricate dance of legal drafting, where precision is paramount and the stakes are high, the humble comma takes centre stage.
This seemingly innocuous punctuation mark has been at the heart of legal battles with stakes reaching into the millions. Let’s delve into the fascinating world of ‘the million‑dollar comma’ and explore its implications for lawyers whether they draft contracts or legislation.
The Case of The Dairy Drivers
In 2017, a group of dairy drivers in the USA found themselves in the limelight of legal history due to a missing comma in a state law governing overtime pay.
The saga begins with a seemingly innocuous list of labour exemptions. The law stated that overtime rules did not apply to:
“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: 1) Agricultural produce; 2) Meat and fish products; and 3) Perishable foods.”
At first glance, it seems straightforward, but the absence of a comma after “shipment” led to a legal dispute that would cost the dairy company $5 million. The case hinged on whether the law exempted the distribution of perishable foods from overtime pay, or if it exempted packing for the shipment or distribution of these foods. The drivers argued the latter, and the courts agreed.
This case underscores the importance of clear and precise language in legislation, as the lack of a single comma had a multimillion-dollar consequence.
The Tariff Act Costly Comma
The Tariff Act transcription error of 1872 is a historical instance where a small clerical error had significant financial repercussions. In this case, a misplaced comma in the US Tariff Act led to a substantial loss of revenue for the government. The original intent of the legislation was to exempt from tariffs the importation of:
“fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation.”
However, due to a transcription error, the comma was shifted, and the phrase was printed as:
“fruit, plants tropical and semi-tropical for the purpose of propagation or cultivation.”
This seemingly minor change had major implications, as it was interpreted to mean that all tropical and semi-tropical fruits, not just the plants, were exempt from tariffs.
Importers of oranges, lemons, and other fruits quickly took advantage of this error, importing their goods without paying the due tariffs.
The Government initially contested this interpretation but eventually had to concede, resulting in the refund of duties collected during the period the error was in effect. Subsequent tariff acts corrected this mistake, but not before $40 million revenue in today’s money was lost.
The Canadian Telecommunications Tangle
Another case that underscores the importance of the Oxford comma involved Rogers Communications Inc., Canada’s largest cable television provider. In 2002, Rogers entered into a contract with Bell Aliant, which agreed to string Rogers’ cable lines across utility poles for an annual fee. The contract stated:
“Subject to the termination provisions of [the Agreement], [the Agreement] shall be effective from the date it is made, and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one (1) year prior notice in writing by either party.”
The dispute arose over whether the contract could be terminated at any time with one year’s notice or only at the end of a five year term. The presence of a comma before “unless” suggested that the termination clause applied to both the initial and successive terms, allowing for termination at any time with due notice.
The Oxford Comma Debate
Contract drafters, take note: The contentious comma at the centre of these legal battles is often the Oxford comma. A comma can indeed alter the intent and enforceability of contractual obligations. It’s the comma used before the final ‘and’ or ‘or’ in a list of items. The Australian Guide to Legal Citation provides guidance on the use of commas to avoid ambiguity, which supports the selective use of the Oxford comma in legal writing. However, the case of Harris v Repatriation Commission is cited as an instance where Australian courts considered the absence of an Oxford comma immaterial to the legal interpretation of a document.
Lessons For Lawyers
For lawyers who draft or interpret contracts and/or lawyers who assist in the development of legislation, these stories serve as a cautionary tale. The precision of language is paramount. A single punctuation mark can alter the meaning of a clause, potentially leading to unintended legal and financial outcomes. It’s a reminder that in the legal profession, attention to detail is not just a skill—it’s a necessity.
Whether you’re drafting the next big contract or shaping the laws of our land, remember: a comma could be worth a million dollars—or more.
About The Author
Dwayne Currie, Expert Advisor, Proximity, has over 20 years’ experience as a government lawyer at executive and senior executive levels, including as the General Counsel of the Australian Pesticides and Veterinary Medicines Authority. He has experience working in service delivery and policy agencies, and in the private sector.
Dwayne has worked with a diverse range of Departments across multiple practice areas, gaining considerable experience in legal policy, commercial law, administrative law, legislative drafting, information law (including freedom of information and privacy) and litigation.
