The humble comma – a matter of life or death?

American film producer Samuel Goldwyn said “a verbal agreement isn’t worth the paper it’s written on”  but was someone actually hanged over a comma?

Law is about words and what is written down recording what is to be or was agreed.  Even where agreements were not put into writing, lawyers will argue about what the parties intended to agree.  Legal documents have a reputation for being verbose and unintelligible to the ordinary person.  For many people, they see the documents as being unnecessarily complicated in order for lawyers to make a living.

That, of course, is not true: it was American film producer Samuel Goldwyn who said “a verbal agreement isn’t worth the paper it’s written on” and how true that is, but spending time and money in drafting a written contract is not always fool proof either.

A recent case in the United States highlighted the importance of punctuation in documents.  In Maine, a group of dairy drivers were in dispute with their employer about overtime pay.  The dispute centred over a law in that State which said the following activities do not count for overtime pay;

“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 drivers argued that the lack of a comma between “packing for shipment” and “or distribution” meant that the packing for shipment or distribution was one activity.  The drivers involved were required only to distribute the goods and not to pack them.  The appeal Court decided that the drivers were correct and that “packing for shipment or distribution” should be taken as one activity and thus the drivers were eligible for overtime pay.

The Oxford Comma

The insertion of a comma before the final “and” in a list is known as the Oxford Comma and its usage (or non-usage) makes academics and grammarians very excited.

In this instance thankfully, the only issue at stake was whether the drivers were to be paid overtime or not.  In an earlier example of comma usage, there was a much more serious outcome for the Irish Nationalist Sir Roger Casement, who was hanged in 1916 for treason against the British State.

He was prosecuted under the Treason Act of 1351 and an issue arose as to where the treasonous act had been carried out, in the UK or abroad.  The relevant section of the Act spoke of persons being “adherent to the King’s enemies in his realm, aiding and giving them comfort in the realm or elsewhere”.  The Crown argued that that meant that any treasonous activities carried out anywhere in the world would be an offence under the Act.  His defence argued that for that interpretation to be correct, there needed to be a comma after the word “realm”.  Ultimately, Sir Roger Casement was found guilty and is now famously said to have been “hanged on a comma”.

Thankfully, the contracts and documents we draft today are not likely to have such grotesque outcomes but to avoid adverse outcomes for clients, time does have to be spent in careful drafting and preparation of documents, careful proof reading as well as ensuring that the document in question actually fits the practice of the employer.