Attend Oxford University And Avoid Ambiguous Leases, Mortgages, And Other Agreements

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We just couldn’t pass up on this one even though newspapers across the country have brought it to the attention of the general public. We think we have a reader-relevant take on it, so our planned posting for this week will have to wait.

One of our the English language’s punctuation marks is highly educated – the Oxford comma. Ruminations uses the Oxford comma. Maybe you should as well. What is it? What does this 12th century city in central southern England, the City of Dreaming Spires, know about this particular punctuation mark? [Should we take a short pause, comma-like, to mention that there is a university there, one with 38 colleges? Not today. Oops, too late.]

The “Oxford comma” is the one placed before the “and” at the end of a serial list: “We use the Oxford comma when we list items such as A, B, and C.” [It’s known as the Oxford comma because it was traditionally used by printers, readers, and editors at Oxford University Press. To be clear, we aren’t talking about a list that includes the “printers, readers and editors at Oxford University.”]

[There is no need to read this paragraph. Those who do, do so at their own risk. Here’s another definition, one for a word we saw today for the first time: “asyndeton.” Have you ever used that one in a sentence? “Asyndeton” means unconnected. “It is a stylistic device used in literature and poetry to intentionally eliminate conjunctions between the phrases and in the sentence, yet maintain the grammatical accuracy.” An example is: “I came, I saw, I conquered.” Its opposite, “polysyndeton,” is a “literary technique in which conjunctions (e.g. and, but, or) are used repeatedly in quick succession, often with no commas, even when the conjunctions could be removed.” Herman Melville’s Moby Dick gives us an example: “There was a low rumbling of heavy sea-boots among the benches, and a still slighter shuffling of women’s shoes, and all was quiet again, and every eye on the preacher.”]

Enough of that. Onward Oxfordians.

On March 13, 2017, the United States Court of Appeal for the First Circuit published a decision dealing with a Maine statute, a statute rendered ambiguous because of the absence of a single punctuation mark, “the” Oxford comma. It wasn’t a real property case, but it sure shouts out a warning to those of us who write and read agreements. [If you’d like to read the court’s decision, and we highly recommend you do so, click HERE for a copy.]

Unsurprisingly, Maine has an overtime wage law. For an interesting reason, its intention might be to exempt some employees involved with perishable foods. For our purposes, that’s not a critical conclusion. What is important for us is the text of a particular exemption available to employers. The protection of the overtime law does not apply to employees doing:

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.

The employer in question was a dairy and the employees seeking overtime pay were its truck drivers. The drivers won.

It was generally agreed that there would have been no issue at all and that the drivers would have come up “empty” had the statute been written to employees engaged in, “packing for shipment, or distribution of … certain food items” instead of “packing for shipment or distribution of … certain food items.”

Pay attention. It’s easy to miss. After all, the only difference is a mere “,”. [Take note that we follow the nearly universally commanded style of placing the final period of a sentence ahead of a sentence-ending quotation mark, though we didn’t do so in the preceding sentence. That “departure” from the overwhelmingly accepted “style” is to demonstrate that slavish adherence to rules can cause grief.]

For the few readers who haven’t yet absorbed the difference between an employee who packs certain food item for distribution and one who engages in the act of distribution, we’ll elaborate. Does the exemption cover truck drivers involved in the distribution of the listed food items or only those who pack those items for distribution?

Now, those who have never thought very hard about the Oxford comma or for that matter haven’t thought very much about any of 14 punctuation marks in the English language, one might think that the statute’s author or authors made a deliberate, reasoned choice about using a comma. Don’t jump to that conclusion. It is more likely that they were obeying their “law,” the one set forth in a particular “style” manual.

The Maine Legislature Drafting Manual “expressly instructs that: “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item in a series.” [Two more points. First, the Oxford comma is sometimes called a “serial comma.” Second, “penultimate” means second to the last of a series. The sentence with that definition is now the penultimate sentence in this paragraph.]

The drafting “style” used for legislation in Maine is not unique to Maine. All but seven states have a “style” rule about the use of the Oxford comma. Many newspapers and other publications have such rules. Commercial style manuals (e.g., The Chicago Manual of Style) have rules. Congress has a rule. The difference is that almost all but Maine’s “style” manual come with a caution, an exception to the rule, so to speak. They expressly warn that “that the absence of serial commas can create ambiguity concerning the last item in a list.” A specific example can be found in the manuals used for federal legislation. Both the House and the Senate rules require “a serial comma to ‘prevent[] any misreading that the last item is part of the preceding one.’”

Mindless adherence to the “Maine” legislative drafting rule would lead to the following absurdity we found in one newspaper account: “I’d like to thank our parents, Mother Teresa and the pope.” One could see a war being waged over a “missing” comma.

So, did the author or authors of the overtime exemption rule leave a comma out because they intended the list to exempt those who pack for shipping and those who pack for distribution, but not those who only perform the task of distribution? Or, did they leave out the comma because that was Maine’s mandated style? That was the root of the ambiguity. And once it finds an ambiguity, a court gets permission to interpret a document the way it sees fit. Here, the court carefully considered the arguments made by the dairy and its drivers. At the end of the day, however, the court chose to apply its concept of the public policy behind the overtime law. That public policy favored paying overtime. It’s not that the dairy didn’t argue for a different public policy interpretation, but courts get to make the choice.

What does this have to do with the way we write our documents? Here’s the take-away. If you don’t want a court to tell you what you “must have meant,” then pay heed. Common sense will nearly always stand you in better stead than a slavish adherence to the conventions. Punctuation and grammar are only tools to help us share a common language. But, there are times when we need to be rebels and make our documents ones of clarity. The same goes for “rules” we lean on to make document drafting faster and easier. Sometimes we are “forcing” our text into “the way we always do it” and not taking time to listen to what we have written. A very good way to improve clarity and avoid vagueness or ambiguity is to “listen” to what the other person has written. Before whipping out that blue pencil, let’s ask ourselves: “Why was it written in that particular way?” Often, it was written that way because it was poorly written. That’s a learning experience as well. But, sometimes our “adversary” is “on to something” and we can learn even more.

And, this isn’t just about punctuation and grammar. No sir! No Ma’am! This is about concepts as well. Let’s take time to understand what others are writing or saying.

Importantly, those of us who are responsible for writing agreements for interpretation by others “who weren’t there” years later, have a special responsibility. THUS, WE NEED TO “THINK.” We can’t just cut and paste or just crank it out. We need to read what we (and others) write. By way of (today’s) example, we can’t choose to abide by a stylebook that requires omission of the Oxford comma without reading what we’ve written to make sure we’ve said what we meant in a way that everyone will agree. Ambiguity is an enemy (unless it is deliberate, as we’ve Ruminated in the posting that can be seen by clicking: HERE.)

Yes, today’s blog posting isn’t about that minor, pausing punctuation mark (the comma). It is about THINKING. Yes, we know of the sayings that start with “Don’t sweat the small stuff.” But, even the little, tiny, and itsy bitsy comma, though small in size, can really be big in its effect. If that can be said about the “little” comma, what can we say about the words we choose to use and how we string them together?

Words matter. Punctuation matters. None of it is small stuff.

If we didn’t want to keep today’s posting (relatively) short, we’d be telling you about some other linguistic “styles” or “rules” and how the court applied them in a quest to resolve the ambiguity inherent in the overtime exemption. We’d be boring or intriguing you, depending on your inclination. We’d tell you about how choosing between a gerund and a noun can make a big difference in outcome. We’d enchant you with the “established linguistic convention … of using a conjunction to mark off the last item on a list.” But, we’ll spare readers of further grammar lessons today. That doesn’t mean we won’t caution readers that they may be ignoring those lessons at their own peril or at the peril of those who pay them. So, for those who want to know more, go ahead and download the court’s decision using the link we’ve provided above.

Finally, why do we punctuate?

“When speaking aloud, you punctuate constantly — with body language.

Your listener hears commas, dashes, question marks, exclamation points, quotation marks as you shout, whisper, pause, wave your arms, roll your eyes, wrinkle your brow.

In writing, punctuation plays the role of body language. It helps readers hear the way you want to be heard.”

― Russell Baker

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Comments

  1. Marc Ripp says:

    Let’s eat Grandma. Let’s eat, Grandma. The absence of a mere comma can turn you into a cannibal!

  2. Woman without her man would be a savage.

    Woman, without her, man would be a savage.

    From my 8th grade English teacher,

  3. Me thinks many are feverishly checking their E&O policy…

  4. Geralyn Humphrey says:

    There have been many times when I changed the order of clauses in a contract provision to make clear that a particular modifier/exception applied only to one clause, and not others.

  5. Peter Collins says:

    If you enjoy The Onion, you might find this report by it humourous:

    http://www.theonion.com/americanvoices/oxford-comma-wins-court-case-workers-55578

    After all, “If we don’t demarcate penultimate items in a list from their coordinating conjunctions, just what separates man from the beasts?”

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