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Nov Advocate 2017

THE ADVOCATE 841 VOL. 75 PART 6 NOVEMBER 2017 Most difficulties with the use of the comma hinge on the distinction between restrictive and non-restrictive sentence elements. A restrictive word, phrase or clause adds to the words it modifies a “restrictive” or defining element that is essential to the meaning of the whole; it should therefore not be separated by a comma or other mark of punctuation. A non-restrictive element provides incidental or supplementary information which does not affect the essential meaning; it should be set off by a comma or commas. (Emphasis added) From these excerpts, it is clear that the only difference between a restrictive and a non-restrictive clause is a comma or other mark of punctuation. In a commercial case9 the judge began: 1 This case concerns what has been referred to as a “million dollar comma”. It involves the determination of rights under an agreement to sell the assets of a company. The agreement, prepared by the solicitors for the vendors and purchasers, went through a series of iterations as the negotiations relating to the transaction progressed. Near the end of these negotiations, the lawyer for the purchaser requested several changes to be made to the purchase and sale agreement, one of which entailed adding a comma to the definition of “average selling price” of any horticultural product, found in Article 1.1 of the agreement. This Article was central to the valuation of the substantial quantity of inventory the value of which formed the major part of the purchase price. The lawyer representing the vendor obliged and added the comma. In this way, the final executed agreement contained the now famous comma that has given rise to this proceeding. The issue to be addressed involves the determination of the effect of this comma on the amount the purchaser must pay to the vendor, under the terms of the agreement. The effect of the comma was $759,000.10 So setting aside all this judicial frivolity, what are commas all about? The simple answer is that a comma should assist in indicating the relationship a word or phrase in a sentence bears to other words or phrases in the sentence. However, like all simple answers, the practical application is a little more complicated. As a simple and amusing example, the sentence “Let’s eat, Grandma” is quite different from the sentence “Let’s eat Grandma”.11 Some years ago an entertaining book, Eats, Shoots & Leaves,12 explored the use, and importance, of punctuation. The title refers to a joke about a panda going into a bar, having a sandwich and then pulling out a gun and firing off a few rounds before leaving. When asked for an explanation the panda replied that a book defined its behaviour as “eats, shoots and leaves”. All for a misplaced comma. Apart from restrictive clauses, commas are also used to separate items in a list. Hence “eats, shoots and leaves” has an entirely different meaning


Nov Advocate 2017
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