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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