For most people, a stray comma isn’t the end of the world. But in some cases, the exact placement of a punctuation mark can cost huge sums of money.
Source: The Commas That Cost Companies Millions
How much can a misplaced comma cost you?
If you’re texting a loved one or dashing off an email to a colleague, the cost of misplacing a piece of punctuation will be – at worst – a red face and a minor mix-up.
But for some, contentious commas can be a path to the poor house.
In 2018, a dairy company in the US city of Portland, Maine settled a court case for $5m because of a missing comma.
Three lorry drivers for Oakhurst Dairy claimed that they were owed years of unpaid overtime wages, all because of the way commas were used in legislation governing overtime payments.
The state’s laws declared that overtime wasn’t due for workers involved in “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 managed to successfully argue that because there was no comma after “shipment” and before “or distribution”, they were owed overtime pay. If a comma had been there, the law would have explicitly ruled out those who distribute perishable foods.
Workers load milk onto trucks at the Oakhurst dairy plant in 2013. Credit: Getty Images.
Because there was confusion, the US Court of Appeals ruled in their favour, benefiting around 120 of the firm’s drivers. David Webbert, the lawyer who helped bring the case against the company, told reporters at the time that the inclusion of a comma in the clause “would have sunk our ship”. (He didn’t respond to interview requests from the BBC.)
The slip-up shows that the slightest misstep in punctuating a clause in a contract can have massive unintended consequences.
“Punctuation matters,” says Ken Adams, author of A Manual of Style for Contract Drafting. But not all punctuation is made equal: contractual minefields are not seeded with semicolons or em-dashes (here’s one: – ) waiting to explode when tripped over.
“It boils down to commas,” says Adams. “They matter, and exactly how depends on the context.”
Delivering Definition
Commas in contracts link separate clauses in a non-definitive way, leaving their reading open to interpretation. While a full stop is literally that – a full and complete stop to one thought or sentence, and the signal of the start of another – commas occupy a linguistic middle ground, and one that’s often muddled. “Commas are a proxy for confusion as to what part of a sentence relates to what,” Adams explains.
The English language is fluid, evolving and highly subjective. Arguments have been fought over the value of so-called Oxford commas (an optional comma before the word “and” or “or” at the end of a list). There might be good arguments on either side of the debate, but this doesn’t work for the law because there needs to be a definitive answer: yes or no. In high-stakes legal agreements, how commas are deployed is crucial to their meaning. And in the case of Oakhurst Dairy against its delivery drivers, the Oxford comma is judged to have favoured the latter’s meaning.
But just because you mean to say something, it doesn’t mean that a court will agree with you, says Jeff Nobles, a Texas-based appellate lawyer who was involved in an insurance case that hinged, in part, on the punctuation of a contract.
According to Nobles, most US courts will say it doesn’t really matter what the parties subjectively intended; it’s the objective intent in the written terms of their contract. “Punctuation sometimes will change the meaning of a sentence,” he says.
Nobles represented an insurance company in a Texas Supreme Court case concerning insurance coverage for a worker who died on the job.
Nobles argued successfully that punctuation mattered for a contractual indemnity provision, when the company tried to trigger coverage under its umbrella insurance policy after a subcontracted employee died on the job. It set a precedent in the state’s legal system, he believes.
He says US courts have become increasingly textual – “they’ve looked more and more at the words on the paper rather than the testimony of the people who used those words on the paper.”
Yet arguments over commas have been raging for more than a century.
‘An Expensive Comma’
In 1872, an American tariff law including an unwanted comma cost taxpayers nearly $2m (the equivalent of $40m today). The United States Tariff Act, as originally drafted in 1870, allowed “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation” to be exempt from import tariffs.
For an unknown reason, when revised two years later, a stray comma sneaked in between “fruit” and “plants”. Suddenly all tropical and semi-tropical fruits could be imported without any charge.
An 1872 tiff over tariffs and tropical fruit cost taxpayers $40m – all caused by a comma. Credit: Getty Images.
Members of the US Congress debated the issue and the problem was fixed – but not before the New York Times bemoaned the use of “An Expensive Comma.” It wouldn’t be the last such error.
“Contract language is limited and stylised,” says Adams. He compares it to software code: do it right and everything works smoothly. But make a typo and the whole thing falls apart.
When errors are introduced into legal documents, they’re likely to be noticed far more than in any other form of writing, he says. “People are more prone to fighting over instances of syntactic ambiguity than in other kinds of writing.”
Muddying the Waters
Of course, in some circumstances, those drafting contracts may want to introduce ambiguities. Getting different countries to sign up to the same principles can be challenging, particularly for climate change agreements.
Early climate change conventions included this line:
“The Parties have a right to, and should, promote sustainable development.”
The sentence ensures those signing the agreement have the ability to promote sustainable development – and should do so.
But in its original draft, the second comma was placed after “promote”, not before it:
“The Parties have a right to, and should promote, sustainable development.”
Some countries weren’t happy with the original wording because they didn’t necessarily want to be locked into promoting sustainable development. Moving the comma kept the naysayers happy while placating those who wanted stronger action.
“By being slightly creative with punctuation, countries can feel like their interests have been addressed,” explains Stephen Cornelius, chief advisor on climate change with the WWF, who has represented the UK and EU at UN climate change negotiations. “You’re trying to get an agreement that people can substantially agree with.”
Most people try to make contract language as clear as possible – but sometimes leaving a bit of ambiguity can help both sides negotiate better. Credit: Getty Images.
Tricks of the Trade
Such linguistic flexibility happens more often than you’d think.
“In diplomacy, even though you try to have a single agreement, it’s very common to change the meaning for different parties,” says climate change negotiator Laura Hanning Scarborough. “You can use terms like ‘inter alia’, or ‘this includes, amongst other things’ to blur the lines to include anything. You can use commas as part of that, too. There are so many language tricks you use to appease people.”
For most people, however, making sure that contracts are unambiguous is important. For that reason, it’s crucial to test contract language to breaking point by giving it to someone who will test its limits – someone who will read it in the most awkward, unhelpful way, says Tiffany Kemp, a commercial contracting trainer for the International Association for Contract and Commercial Management.
One of the biggest cases battled over a comma was a dispute between two Canadian telecommunications companies. Rogers Communications and Bell Aliant fought a legal battle worth CAD$1m ($760,000) over a contract to replace utility poles across the country.
The argument stemmed from a single sentence:
“This 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 year prior notice in writing by either party.”
The two sides argued that the comma after “five (5) year terms” meant something different: Bell Aliant said that the single year’s notice of termination applied at any time, Rogers that it only applied after the first five-year term ended.
This was important as Rogers had struck a great deal under their reading of the contract: when they signed a contract to lease the poles from Bell Aliant in 2002, they were paying just CAD$9.60 per pole. By 2004, the cost had nearly doubled. Bell Aliant, understandably, wanted to terminate the contract and renegotiate at the new, higher price. Rogers didn’t.
Successive courts were equally uncertain about the agreement: Canada’s Radio-Television and Telecommunications Commission first declared in favour of Bell Aliant in 2006; a year later, it changed its mind after consulting the French language version of the contract, which didn’t include the same ambiguity.
This dispute wasn’t brought about by wilful ignorance, reckons Kemp. “Sometimes there are genuinely different understandings,” she explains. “That little comma was put in a place that you would put in a place for a breath if you’re reading it out loud.”
Deadly Punctuation
How do these misplaced or misused commas make their way into complicated contracts that have been drafted by professionals? Part of the problem, says Adams, is technology. “Drafting contracts has long been a function of copying and pasting from precedent contracts, and that results in a kind of heedlessness, a detachment from the nitty gritty of how you’ve expressed what you want to express in a contract,” he says. “It’s easy to miss this sort of problem.”
In one extreme example, a misplaced comma was at the heart of a death-penalty trial.
Roger Casement, an Irish nationalist, was hanged in 1916 under the 1351 Treason Act. He had incited Irish prisoners of war being held in Germany to band together to fight against the British. The debate over whether Casement was guilty hinged on the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal; without it, he would get away with it.
Roger Casement, an Irish nationalist, was hanged in 1916. Credit: Getty Images.
Despite Casement’s lead counsel’s assertion that “crimes should not depend on the significance of breaks or of commas”, and “if a crime depended on a comma, the matter should be determined in favour of the accused, and not of the Crown”, the court ruled that the comma mattered. Casement was found guilty and executed.
Though today life and death doesn’t hinge on the use of commas – but big money, insurance policies and environmental agreements certainly do.
For that reason, it’s important to carefully check any contracts we sign, the experts say – and that means not just dotting the Is and crossing the Ts but also making sure every comma is in the correct place.
People sign contracts not because they’ve negotiated their meanings, but based on their own understanding of what they’re agreeing to, explains Nobles. Contracts written by lawyers on behalf of a business might have a different meaning than what the lay person understands.
So it pays to pay attention. If a piece of punctuation seems out of place or introduces ambiguity, speak up.
“The purpose of a contract is to help people get the outcomes they both expected, and to know what they’re supposed to do and get from the other side,” says Kemp.
“If there’s a misunderstanding, you owe it to both of you to get it sorted out. Have the argument today, rather than tomorrow.”
It could prevent a lot of pain in the future.
The Lost Books of Jane Austen by Janine Barchas review – how Austen’s reputation has been warped | Books | The Guardian
A deliciously original study of the cheap editions of Pride and Prejudice and other novels – ignored by literary scholars – casts new light on Austen’s readership
Source: The Lost Books of Jane Austen by Janine Barchas review – how Austen’s reputation has been warped | Books | The Guardian
Jane Austen aficionados think that they know the story of their favourite author’s posthumous dis-appearance and then re-emergence. For half a century after she died in 1817, her books were little known or read. A few discriminating admirers such as George Henry Lewes and Lord Macaulay kept the flame of her reputation burning, but most novelists and novel readers were oblivious to her. Then, in 1869, her nephew James Edward Austen-Leigh published a memoir about her and the public got interested. Her novels started being republished and widely read. She has never looked back.
Janine Barchas’s The Lost Books of Jane Austen puts us right. Her book about books is a beautifully illustrated exploration, indeed compendium, of the popular editions of Austen’s novels that have appeared over the last two centuries. This includes those decades when Austen was supposedly lost from sight. The first chapter is a “vignette” on a copy of Sense and Sensibility, published in 1851 for George Routledge’s Railway Library (books suitable for reading on the train). It cost one shilling and was bought for the 13-year-old Gertrude Wallace, the youngest daughter of a Plymouth naval officer. It is the first of many examples of cheap and popular editions of Austen’s work that kept it alive for ordinary readers and that literary scholars have largely ignored.
After Austen’s death, the copyrights to her novels were bought by the publisher Richard Bentley, who issued them in his Standard Novels series in 1833, in single volumes at six shillings each – much cheaper than the triple decker editions selling for a guinea and a half, but still out of reach of all but the affluent. He cut his prices in the 1840s, but already there were alternatives. By the late 1840s, there were what we would call paperback editions of her novels cheaply available and aimed at train travellers. Pioneering publishers such as Simms & M’Intyre produced Austen novels for a shilling a shot, and then for sixpence each in their Books for the People series. (They paid no attention to the fact that Bentley officially still owned the copyright to some of these.)
“Cheap books make authors canonical,” proclaims Barchas’s first sentence. Thousands of mid-century readers consumed “yellowback” versions of Austen’s novels, so-called because of the yellow paper stuck to the back of them on which advertisements were printed. The sheer proliferation of cheaply produced editions of Austen’s fiction has been invisible because very few of these books have survived. Paradoxically, the expensive first editions of Austen’s novels are now easier to find than the mass-market editions of the Victorian age. Barchas has clearly relished her detective work (and apparently amassed quite a collection herself). She not only describes them, she shows us what they looked like.
Photographs are essential to this book. There in front of you is the 1851 Parlour Library reprint of Mansfield Park, with its red design and lettering on a startling acid green cover, in waxed paper boards. It retailed at WH Smith at British railway stations for two shillings. The willingness of publishers to spice up Austen’s novels is caught in the 1870 Chapman & Hall edition of Pride and Prejudice, whose cover depicts Lydia Bennet flirting with officers at their camp in Brighton, or the 1887 sixpenny Sense and Sensibility, featuring Colonel Brandon and Willoughby pointing their duelling pistols at each other (neither scene was actually included in either novel).
Tracking down these endlessly repackaged reprints, Barchas is in terra incognita. Scholarly bibliographers have minutely recorded the various respectable editions of Austen’s fiction, but most of these cheap popular products, never having made it on to the library shelf, remained unknown to bibliographers. These are volumes that scarcely feature in the catalogues of the great research libraries of Britain and North America. The existing record is, as Barchas characteristically says, “gobsmackingly incomplete”. Her style is sometimes informal, but her attention to print history is painstaking.
She explains the importance of stereotyping processes, whereby printers could mould and then cast in metal the expensively assembled type of a new edition. The resultant stereotyple plates could be used over and over again. Routledge would go on to use his same stereotype plates to produce seven more editions of Sense and Sensibility over the next three decades. (Barchas gives us a photograph of all of them in their very various liveries.) Austen stereotype plates would be sold on from one publisher to another, the resultant type becoming more and more faded as one printing succeeded another.
There clearly was a new enthusiasm for the novels after 1870. Barchas shows us the flurry of colourfully jacketed Austen volumes that began appearing, some evidently intended for the juvenile reader. In America, where publishers treated Austen’s texts with greater literary respect, the market for her work was much quieter in the mid-19th century, but appears to have taken off in the 1870s. Her novels became available for a dime or 15 cents each. In Britain, the sixpenny novel became standard. Soon Austen was being serialised.
In the 1890s, radical publishers produced a library of “famous books” for working-class readers at a penny per volume, which included Sense and Sensibility. At the same time Pride and Prejudice was being boiled down by two thirds for William Stead’s Penny Prose Classic series for young readers. In the 1890s the soap manufacturers Lever Brothers published their own editions of the two novels as prizes for teenage consumers who sent in the largest number of soap wrappers. Barchas dedicates a whole chapter to her researches into the Sunlight Library, calculating that the company gave away some 1.5m books over the course of seven years (though perhaps more by Sir Walter Scott than Jane Austen).
Another chapter chronicles the surprising religious and morally improving uses of her fiction. In the 1840s her novels were included in a multi-volume library of nonconformist tomes aimed at right-minded female readers. Often, they were given as prizes in Sunday schools (despite the creepy vicars she depicts). In the 1890s, editions of Austen were commissioned by a Christian temperance society for distribution to labourers in the West Midlands: Mansfield Park was presented as an alternative to another visit to the pub.
Barchas follows popular editions of Austen well into the 20th century, looking at how publishers began to take images from Hollywood films such as the 1940 MGM Pride and Prejudice to lend excitement to new editions.
A final chapter charts “The Turn to ‘Chick Lit’”, with Barchas arguing that it was only really in the 1960s that “gendered marketing strategies” created the false sense that Austen was a women’s novelist. Among the dizzying variety of 1960s paperback covers that she displays – from austerely antiquarian to lividly psychedelic – are examples of “pinked” editions, deploying the colour wherever possible as a “consumer signal to women”. Sales seem to have risen even further.
Barchas enjoys quoting such writers as Mark Twain and Henry James, as they huff and puff about Austen’s mere popularity. The lesson of this delicious book is that she was even more popular for even longer with an even greater variety of readers than we ever thought. When you look at all the uses to which she was put, you think of Frank Kermode’s definition of a literary classic as a work that “sub-sists in change, by being patient of interpretation”. Austen’s novels have long been very patient.
• John Mullan’s What Matters in Jane Austen? is published by Bloomsbury.
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Tagged as Jane Austen, Janine Barchas, reputation, Saturday, The Guardian