Tricks of the trade
Such linguistic flexibility happens more often than you’d think.
“In diplomacy, even though you try to have a single agreement, it’s very common to change the meaning for different parties,” says climate change negotiator Laura Hanning Scarborough. “You can use terms like ‘inter alia’, or ‘this includes, amongst other things’ to blur the lines to include anything. You can use commas as part of that, too. There are so many language tricks you use to appease people.”
For most people, however, making sure that contracts are unambiguous is important. For that reason, it’s crucial to test contract language to breaking point by giving it to someone who will test its limits – someone who will read it in the most awkward, unhelpful way, says Tiffany Kemp, a commercial contracting trainer for the International Association for Contract and Commercial Management.
One of the biggest cases battled over a comma was a dispute between two Canadian telecommunications companies. Rogers Communications and Bell Aliant fought a legal battle worth CAD$1m ($760,000) over a contract to replace utility poles across the country.
The argument stemmed from a single sentence:
“This 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 year prior notice in writing by either party.”
The two sides argued that the comma after “five (5) year terms” meant something different: Bell Aliant said that the single year’s notice of termination applied at any time, Rogers that it only applied after the first five-year term ended.
This was important as Rogers had struck a great deal under their reading of the contract: when they signed a contract to lease the poles from Bell Aliant in 2002, they were paying just CAD$9.60 per pole. By 2004, the cost had nearly doubled. Bell Aliant, understandably, wanted to terminate the contract and renegotiate at the new, higher price. Rogers didn’t.
Successive courts were equally uncertain about the agreement: Canada’s Radio-Television and Telecommunications Commission first declared in favour of Bell Aliant in 2006; a year later, it changed its mind after consulting the French language version of the contract, which didn’t include the same ambiguity.
This dispute wasn’t brought about by wilful ignorance, reckons Kemp. “Sometimes there are genuinely different understandings,” she explains. “That little comma was put in a place that you would put in a place for a breath if you’re reading it out loud.”
How do these misplaced or misused commas make their way into complicated contracts that have been drafted by professionals? Part of the problem, says Adams, is technology. “Drafting contracts has long been a function of copying and pasting from precedent contracts, and that results in a kind of heedlessness, a detachment from the nitty gritty of how you’ve expressed what you want to express in a contract,” he says. “It’s easy to miss this sort of problem.”