In a contract drafting workshop last week, we were looking at a 126-word definition of a 3-word phrase. Someone asked, “Is there a rule that a definition has to be just one sentence?” There is no such rule, in English contract law or in life. But it was a sensible question, considering how many contract terms have no punctuation at all.
There is no reason to avoid punctuation in contract terms
The judgments quoted in this blog show that, in English contracts:
- There is no drafting rule saying you cannot punctuate a sentence, or divide a paragraph into sentences.
- There is no rule of interpretation saying a court must ignore punctuation.
But the contracts mentioned in those judgments, as well as daily experience, show that long and unpunctuated sentences are still common in English contracts.
What do the judges say?
Today, judges expect punctuation to clarify the meaning of wills, planning conditions, expert reports, evidence, and contracts. If it doesn’t, they complain. You can confirm this, if you have the patience, by searching a database of English judgments for “punctuation”. Here is a sample of the comments you’ll find, relating to contracts:
- “Despite its miserable absence of punctuation it is possible to understand from the rest of paragraph 2, together with the definitions set out earlier in the lease, that the arrangements for the payment of the Maintenance Charge are as follows: …”
Triplerose v Cakan [2019] UKUT 257 (LC), paragraph 5 - “Unhelpfully, there is no punctuation in clause 2.43 (indeed there is hardly any punctuation throughout the 1987 Deed). Nevertheless, there seems to be two bases for the ” final dissolution “, namely: …”
Boyle v Burke [2019] EWHC 3364 (Ch), paragraph 57
Perhaps surprisingly, the judges hardly pause to criticise long sentences. The harshest criticism I found was this, speaking not of a professionally drafted contract but of a litigant’s home-made (and unusually incoherent) counterclaim: “Instead of short sentences, each making a single point, there are very long sentences, making several points all at once.” Jones v Longley [2016] EWHC 1309 (Ch), paragraph 27. Sentences like that are common in professionally-drafted contracts.
What do the judges do?
Actions speak louder than words. When judges need to understand the effect of a long clause, they break long paragraphs into separate sentences and long sentences into separate chunks of text, each containing one idea. From this re-formatting, the structure of the clause begins to emerge. Then its meaning can be understood, paying attention separately to each idea. The judges number the chunks of text; then the meaning can be discussed, explained, and applied to the facts of the case. I wonder how the lawyers review and negotiate the draft clauses, or the clients try to perform them, without going through this exercise.
For a (long) example, see the 331-word sentence divided by Lord Bingham into numbered paragraphs “for ease of reference” in The Starsin, [2003] UKHL 12, paragraphs 20, 52, 92.
To me, the message is clear. Judges, like the rest of us, prefer their information in short, manageable chunks. In contract clauses, we all need full stops and paragraph breaks.
Punctuation is relevant to contract interpretation
The first task in contract interpretation is to find the literal meaning of the text. Punctuation is part of the text and affects its meaning.
But I have not yet found a case where a judge paid more attention to the punctuation than to the words or commercial sense. If a term’s meaning seems to depend on a comma, the court looks for another, more secure, foundation for its interpretation.
For example, in a leading case on contract interpretation, the Supreme Court’s judgment considers four arguments on one point of interpretation. The first and most significant of these, it says, was the purpose of the wording. The last and least was the commas. About these, the judgment says: “I do not think that the use of commas in this clause is a strong pointer in favour of Capita’s interpretation, both because there are no set rules for the use of commas and in any event the draftsman’s use of commas in this clause is erratic.” Wood v Capita Insurance Services Ltd, [2017] UKSC 24, paragraphs 33-37.
A year later, a Commercial Court judge cited this remark and added another reason to distrust punctuation: “punctuation may be misunderstood, erroneously used or overlooked”. The judge was considering whether a comma, added in negotiations, had increased a financing fee by more than US$ 30,000. It was argued that she must interpret the contract as it was signed, not adding or taking away a word or a comma. The judge said: “it seems to me that there is a very great difference between inserting words which are not there, or removing words which are there, and concluding that punctuation has gone awry”. Vitol E&P Ltd v New Age (African Global Energy) Ltd [2018] EWHC 1580 (Comm), paragraphs 28, 56.
Good punctuation is more influential
The two judgments just quoted show that erratic and poor punctuation have even less influence than good, consistent punctuation.
As the most senior court in Scotland put it, while interpreting a clause in title deeds: “where the draughtsman and parties intend a punctuation mark to be of particular significance in understanding the meaning of the provision, we would expect that intention to be evidenced by a careful and consistent use of the mark”. Humphreys v Crabbe [2016] CSIH 82, paragraphs 26.
Getting it right
If you want your reader to understand your ideas, there’s a quicker way than mastering the many and imprecise rules of punctuation. Instead, use plenty of short sentences (2 lines maximum). The full stop is hard to get wrong and easy to understand. In short sentences, you need few other marks.
And, good news, we don’t have to be perfect! Most of the quotations in this blog post, from senior and respected judges, have small mistakes of grammar or punctuation. They are still understandable. I thought about tidying them up. But then I left them unedited, to encourage the rest of us.
Action
- Break contract terms into short sentences and short, numbered, chunks of text.
- Write in short sentences: 2 lines maximum.
- Optional: get interested in punctuation.
- Read Chapter 12 (Punctuation) in the book Clarity for Lawyers.
- Follow the blog.
