Commas

[liadnan]

I wrote about this on Geeklawyer's forum yesterday, and the inestimable Charon QC picked it up from there and wrote about it too, but I thought I'd note it here as well: compare and contrast:

Subject to the termination provisions of [the SSA], [the SSA] 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.

with

Subject to the termination provisions of [the SSA], [the SSA] 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 first was what a telecomms infrastructure contract in Canada actually said: the regulatory tribunal charged with resolving the resulting dispute decided that strict construction was appropriate and said it didn't mean the same as the second. (Thanks to Jules on the forum for the link to the actual judgment.)

It is thought the difference has cost Rogers Communications, who appear to have argued for purposive construction in the light of the matrix of fact blah (a la ICS, where the trial judge and eventually Hoffmann dragging the rest of the House of Lords along with him, read the phrase "Any claim (whether sounding in rescission for undue influence or otherwise)" as "Any claim sounding in rescission (whether for undue influence or otherwise)" because the strict construction was commercial nonsense*) ie they wouldn't have been so bonkers as to sign up to that, CA$2.13M. One suspects appeal or judicial review is being contemplated, this is, after all, merely a first instance regulatory tribunal decision, but interesting nonetheless...

*per Hoffmann in the ICS judgment: "The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax." It's worth noting, however, that as Hoffmann pointed out, what was actually written in the ICS contract was on any construction rather weird: what would be the point of singling out claims for recission for undue unfluence if the clause was to cover "any claim"? ICS is great, if only because Alice in Wonderland is cited by Hoffman as authority: "Alice and Humpty Dumpty were agreed that the word "glory" did not mean "a nice knock-down argument." Anyone with a dictionary could see that. Humpty Dumpty's point was that "a nice knock-down argument" was what he meant by using the word "glory." He very fairly acknowledged that Alice, as a reasonable young woman, could not have realised this until he told her, but once he had told her, or if, without being expressly told, she could have inferred it from the background, she would have had no difficulty in understanding what he meant.". While I'm generally in favour of strict grammar, that approach does, as transactional lawyers know better than I, show more appreciation of the way in which heavy commercial contracts come into being. The contrary argument, of course, is commercial certainty: the whole point of such heavily drafted serious contracts is that they should mean precisely what they say.