Interesting! You know, at first I was thinking along the same lines as you:

"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."

But then I started wondering about the "other" in that second series: "other special, incidental, indirect, or consequential damages." Could the "other" imply that all of the items listed before and after can be considered members of the same class? e.g., "at no time will my child consent to eating any broccoli, cauliflower, or kale or other healthful, colorful, cruciferous or leafy vegetables of any kind."  Not an exact parallel, and semantically it is more obvious that vegetables are in the same class than "loss or damage to revenues, profits, goodwill," etc., but I think "other" makes this passage even murkier.

Your rewrite is much more clear than the original. The repeated language and the semicolon both make a big difference.

Beth

Dr. Beth Rapp Young
Associate Professor, English
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University of Central Florida
"Reach for the Stars"
________________________________
From: Assembly for the Teaching of English Grammar [[log in to unmask]] on behalf of Dick Veit [[log in to unmask]]
Sent: Tuesday, April 14, 2015 4:19 PM
To: [log in to unmask]
Subject: Re: Grammar dispute in a big-time corporate lawsuit

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]<mailto:[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
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