The ambiguous comma
By Jerome Veldsman
A serial comma (also named a series comma, an Oxford comma, or a Harvard comma) is the comma (if inserted) immediately before the conjunction (usually “and” or “or“) in a series of three or more terms. As an example of the use of a serial comma:
He plays badminton, squash, and tennis.
In some English-speaking jurisdictions, the ubiquitous and usually unassuming comma (,) has on occasion taken centre stage in several reported judgments. The disputes arise from the author having inserted, or not having inserted, a serial comma.
A 2017 USA judgment (O’Connor and Others v Oakhurst Dairy and Another) hinged on an “absent” comma. The relevant legislation governed overtime pay, including exclusions from entitlement to overtime pay. Workers conducting the following were excluded from entitlement to overtime pay:
“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [agricultural produce and fish products].“
The relevant workers (delivery drivers for a dairy company) argued that the last term in the series concerned “packing for shipment or distribution“. And, whilst they conceded that they conducted the distribution of agricultural produce, they had nothing to do with packing agricultural produce.
The dairy company argued that a serial comma ought to be “read in” immediately after “shipment“, so that the second last term in the series concerned “packing for shipment“, and the last term in the series concerned (only) “distribution“.
The Court ultimately decided in favour of the workers, but it was a very close call. And perhaps the wrong one.
Note that the use of commas is even more complicated than illustrated in that case. In addition to commas being used to separate terms in a series of three or more terms, commas are also used when mentioning one noun to clarify/describe another (the nouns are “in apposition”, with one being the appositive of the other). As an example of an apposition:
Our previous President, Nelson Mandela, was an anti-Apartheid activist.
(“Nelson Mandela” is the appositive of “(previous) President”.)
A British newspaper once published a description of a documentary, including that “highlights of his global tour include encounters with Nelson Mandela, an 800-year-old demigod and a dildo collector“.
Obviously, the intention must have been to communicate about three discrete encounters (a series of terms). But the text could facetiously be read as describing Nelson Mandela as “an 800-year-old demigod and a dildo collector“. And a “serial comma” would have made but a modest contribution to excluding the ambiguity, as then the text could still facetiously be read as describing Nelson Mandela as “an 800-year-old demigod“. When listing a series of three or more terms, one ought also to be mindful of whether items in the series could be confused with nouns in apposition.
The ambiguous comma is one of many reasons why legal practitioners sometime spend so much time on important but short documents. Ambiguity must be contained as far as reasonably possible. And the recent demand for “Plain English” (an aberration) in legal documents makes the task even more arduous.
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