The Million Dollar Comma
May 23, 2023
A new article from the BBC explores the importance of punctuation in contracts, focusing in particular on the comma, and how its misuse can cost companies considerably when drafters get things wrong.
Oakhurst Dairy out of Portland, ME owes delivery drivers back overtime pay after a $5M settlement reached earlier this year. Attorneys for the drivers argued the lack of a comma in the state’s overtime laws meant their clients were entitled to payments their employer believed were not owed. The key statutory language concerned those workers who were not entitled to overtime pay, including those involved in: “the canning, processing, preserving, freezing, drying, marketing, storing, packaging for shipment or distribution of: 1) agricultural produce; 2) meat and fish products; 3) perishable foods.”
The entire argument hinged on the missing comma between the words “shipment” and “or distribution.” Had a comma been used, the law would have ruled out the Oakhurst Dairy delivery drivers as those workers who distribute perishable foods.
Ken Adams, author of A Manual of Style for Contract Drafting says, “punctuation matters… [but] it boils down to commas… they matter, and exactly how depends on the context.” Commas serve to connect separate clauses in a way that leaves their reading open to interpretation, and in contract drafting this ambiguity can either be a useful strategy tool employed by the drafter, or a detrimental oversight.
US courts are turning more to textual interpretation and give more weight to the words in the contract than the testimony of the contracting parties themselves. A misplaced comma can entirely change the meaning of a sentence, an important consideration as more courts rely on the written word to decide contractual disputes. For this reason, it is essential we are “not just dotting the Is and crossing the Ts but also making sure every comma is in the right place.”
During the drafting process, if punctuation seems ambiguous, it is paramount that parties speak up and nail down the actual meaning of their negotiated terms on the page. “The purpose of a contract is to help people get the outcomes they both expected and know what they’re supposed to get from the other side,” so there should not be misunderstandings. If there are disagreements over contract interpretation, argue the issues upfront rather than down the road. Doing so may save all involved a painful legal headache in the future.
To read the full article from the BBC, The Commas That Cost Companies Millions, click here.
To read how Castaybert PLLC can assist you with contractual matters, click here.
