Corporate & Securities Law

One Kind of Fix for Overreliance on a Comma

By Ken Adams

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.

Full post as published by AdamsDrafting on February 24, 2010 (boomark / email).