Beth,

Yours was exactly the kind of careful and thoughtful response I was looking
for.

I agree that, despite the headline, the dispute was not about the Oxford
comma. I also agree that the sentence has needless structural ambiguity. In
writing classes, we preach against wordiness, but in legal matters,
repetition can be necessary to prevent ambiguity, as in the following:
(additions/deletions in bold)

"in no event shall either party be liable for any loss or damage to
revenues, profits, or goodwill *resulting from its performance or failure
to perform under this agreement;* *or and in no event shall either party be
liable for* other special, incidental, indirect, or consequential damages
of any kind resulting from its performance or failure to perform under this
agreement. . . ."

Even with the existing structural ambiguity, however, I don't see a reading
that would make one party liable for damages, so I don't agree with the
judge. I think that the plaintiff was pulling a fast one in arguing that
"the 'or other . . . consequential damages' language modifies 'revenues,
profits, or goodwill' to make clear that these categories of damages are
only excluded to the extent that they are considered consequential.'"

The plaintiff uses ellipses to conveniently ignore the words "special,
incidental, indirect, or." Taken together, those words show that all kinds
of damage are excluded, not just 'consequential' damage.

Dick

On Tue, Apr 14, 2015 at 11:44 AM, Beth Young <[log in to unmask]> wrote:

>  I agree with the judge in this case—the passage is ambiguous. What has
> caused the ambiguity isn’t the lack of an Oxford comma—it’s the lack of
> hierarchical punctuation in between two series of items.
>
>
>
> The passage in question:
>
>
>
> "in no event shall either party be liable for any loss or damage to
> revenues, profits, or goodwill or other special, incidental, indirect, or
> consequential damages of any kind, resulting from its performance or
> failure to perform under this agreement. . . ."
>
>
>
> There’s an Oxford comma before “or goodwill,” and another Oxford comma
> before “or consequential.” What’s needed is something to clarify the
> relationship between the first series (revenues, profits, or goodwill) and
> the second series (special, incidental, indirect, or consequential damages
> of any kind). Is the second series supposed to be modifying only “goodwill”
> (in which case no lost revenues or profits are covered, whether direct or
> consequential)? Or is the second series modifying everything in the first
> series (in which case loss to direct revenues, direct profits, and both
> direct and consequential goodwill are covered)?
>
>
>
> Like many of us, I occasionally get calls from attorneys about this kind
> of confusing language. I’m rather glad that this one didn’t come to me,
> whew.  Just writing this email about it was a challenge.
>
>
>
> Dick, you said you had opinions on this issue. What are they?
>
>
>
> Beth
>

To join or leave this LISTSERV list, please visit the list's web interface at:
     http://listserv.muohio.edu/archives/ateg.html
and select "Join or leave the list"

Visit ATEG's web site at http://ateg.org/