Drafting Errors: The Case of The Million Dollar Comma

Consider the following sentence:  Woman without her man is lost.  How would you punctuate the sentence to make its meaning clear? Would the meaning of the sentence change, depending on where you place the comma? Consider the following:

  • Woman, without her man, is lost.
  • Woman, without her, man is lost.

The result yields two completely different propositions- all dependent on the placement of a single comma!

Now consider the case of Rogers Communications Inc., Canada’s largest cable television provider. In 2002, Rogers Communications Inc. entered into a contract with Bell Aliant, a telephone company in Atlantic Canada, in which Aliant agreed to string Rogers’ cable lines across roughly 91,000 utility poles in the Maritimes for an annual fee of $9.60 per pole. In 2005, Aliant informed Rogers that it was terminating the contract and increasing its rates to $18.91 per pole. Rogers objected, on the grounds that the contract couldn’t be terminated until the spring of 2007. Aliant, on the other hand, was of the view that the agreement could be terminated at any time with only one year’s notice. (The Comma That Costs 1 Million Dollars (Canadian); Costly Drafting Errors, Part 1—Rogers Communications and Aliant; The costly comma – contract punctuation lessons from Canada).

The disputed language is as follows:

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.”

What do you think- can the contract be terminated by either party at any time after providing one year’s notice (As Aliant argues)? Or, can the contract only be terminated at the end of a five year period (as Rogers argues)?

Well, the answer depends on whether the phrase, “unless and until terminated by one year prior notice in writing by either party” modifies both preceding clauses, or just the immediately preceding clause.  In its 2006 ruling, the Canadian Radio Telecommunications Commission stated that, based on the rules of punctuation, the presence of the comma immediately before the word “unless” suggests that the closing modifier modifies both preceding clauses. Thus, Aliant could terminate the contract on one year’s notice during the initial five year period.

What if the comma preceding the word “unless” wasn’t there- would that change the interpretation of the contract? Clearly it would:

[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.”

In this iteration, the phrase, “unless and until termination by one year prior notice,” modifies only the immediately preceding clause pertaining to renewal of the contract. Thus, the contract as it appears here cannot be terminated until the end of five years.

On appeal, Rogers produced the French language version of the contract, absent from which is the errant comma. The Commissioner reversed its decision, reasoning that it was appropriate to review the French version of the contract because the Commission had approved the pole access rates and regulations in both English and French in 2000 when the rates and regulations were put in place. (Rogers wins ‘comma’ contract dispute). The Commissioner further reasons that between the two versions, it is appropriate to prefer the French language version as it has only one possible interpretation, and that interpretation is consistent with one of the two possible interpretations of the English language version. (English and French Versions of Rogers-Aliant Contract).

 

7 comments

  1. This case clearly raises the problems inherent in doing business in multiple languages. You not only need to get everything right the first time, but you have to be able to duplicate it, in another language. Obviously there are some difficulties in translating from one language to another, but this really demonstrates the need to ensure that you are ending up with the same contract in both versions. The fact that they were not grammatically identical is obviously a huge issue (as pointed out above), but also the fact that the contracts had different interpretations. How are you supposed to determine which contract is controlling? Contracts require precise language and a ‘meeting of the minds’, neither of which, it could be argued, are present here.

  2. I have heard cases like this before in class and at my internship. This is one of those situations which scares every lawyer and terrifies law students across the world. One comma misplacement can change the entire meaning of a contract. Reading cases like this makes me think a great addition to our legal skills courses would be an entire semester focused strictly on punctuation. Should every large law firm hire english scholars to review contracts? Probably not a bad idea.

  3. I think there is always a risk of problems occurring when translating a document from one language to another. Not every word will have an exact translation, and punctuation may even have different rules. It seems that in this case the exact meaning of what was said was lost in translation and the only way to evaluate the contract was to go back to the original document, which was in French. This seems like an issue that may come up in international transactions more than we realize. Like Lindsay said, this is every lawyer and law student’s worst nightmare come true. Sometimes when you are looking at a document for so long you become blind to all the little errors because you have looked at the document so much that you know it by heart. The odds of missing errors is even more likely when you are the one who has written the document because you know what you meant to say, so you may overlook that you missed a word. It is so crucial to check your work thoroughly, and maybe have someone else check it just in case.

  4. Drafting, drafting, drafting. This case is an excellent example of the precision and meticulousness with which the drafter must approach his contract drafting. I would assume that this contract is subject to review by several attorneys before it is finalized. It surprises me that none of these attorneys caught this error (albeit a minor error, but still one that has an enormously detrimental impact).
    I don’t think it is fair to accept only the french version of the contract for purposes of contract interpretation. The contract was also drafted in English and, therefore, equal deference must be given to the English version. When the terms of a contract are not clear based on the four corners of the contract, however, it is appropriate to look at extraneous evidence to determine the intent of the drafters. Perhaps the meaning of the language as deduced from the French contract can be used as proof of the drafter’s intent, thus settling any ambiguities in the contract language.

  5. he Court used linguistic convention as a guide to determining the parties’ intentions. But, as the comments above point out, the burden is really on the parties of a contract to unambiguously state the contract terms. As an interesting aside, the same issue came under discussion last spring, in the context of mathematical notation. Take the sentence, 48÷2(9+3). This is ambiguous because, like the case of the million dollar comma, we are not sure whether the author wants us to multiply the quotient of (48/2) by the product of (9+3), or divide 48 by the product of 2(9+3). And so, depending upon the order of operations used, we get two different results: 288 or 2, respectively. The general consensus seems to be that the division symbol is an ambiguous notation that makes solving problems confusing. Instead, the problem should be written as a fraction, such that
    48
    ——– (9+3) = 288; or
    2

    48
    ——– = 2
    2(9+3)

  6. If the contract has both an English and French version, how can the court disregard the English interpretation of the contract? Shouldn’t the contract be read in light of both interpretations? Is it right to ignore another language’s version of a contract simply because it has two possible meanings (which the drafter overlooked)? English speaking persons agree to one meaning of this clause. If the contract is to be enforceable in English, how can the contract have a substantially different interpretation? Who is to blame for this grammatical mistake? The reader or the writer?

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