Careful with your commas

Service: Litigation & Dispute Resolution

By Keshia Manolios

“Punctuation has purpose… [it is] an important tool in ascribing meaning, idea, thought, intention and mood to what the author of the written words seeks to impart or convey to the reader.”

These were the words of Honourable Judge van der Westhuizen in the case Auto Alpina v Abrina 3765 Pty Ltd, case number 66026/18 (“Alpina case”). In his judgment, Van Der Westhuizen J placed particular importance on the placement of the “Oxford comma” in interpreting a contract that had been entered into between the two parties.

The use of the oxford comma is commonly used before the word “and” or before the word “or” where there is a list of three or more items in a sentence and its purpose is to avoid ambiguity in a sentence. By way of example, if one writes a sentence as follows “The singers, Prince Harry and Mother Theresa were invited to a party” without the use of a comma before the word “and” it would give the impression that Prince Harry and Mother Theresa are the singers. By adding the comma before the word “and” it becomes clear that the writer is referring to three separate categories; “The singers, Prince Harry, and Mother Theresa were invited to a party.”

In the Alpina case the clause requiring interpretation read as follows:

“3.3 The sellers are able to grant and transfer to the purchaser the non-exclusive right to use the trade name ‘Auto Alpina’, the purchaser acknowledging that Auto Alpina (Pty) Ltd, Registration No 1967/009654/07 also has the non-exclusive right to use the trade name Auto Alpina at any motor vehicle dealership, and motor-related businesses operated by Auto Alpina (Pty) Ltd under a BMW South Africa franchise for, or in respect of, BMW branded motor vehicles. (my emphasis added).

The court had to decide whether the applicant merely had a limited right of use of the trade name, ‘Auto Alpina’, linked to and dependent upon the existence of a BMW-franchise or a BMW branded auto trade.

The respondent argued that on a proper interpretation of the above-mentioned clause the non-exclusive use by the applicant of the trade name was limited to motor related businesses under a BMW franchise agreement. In support of its case the respondent argued that the context in which the provision appeared, the apparent purpose to which it was directed and the material known to those responsible for its production, it could not have been intended that the applicant could use the trade name in respect of any other motor vehicle or motor related businesses other than under a BMW franchise agreement.

The applicant, however, argued that when interpreting a contract, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax and the punctuation used in the above-mentioned clause, in the ordinary grammatical syntax, distinguishes between two different concepts or categories through the use of the Oxford comma before the word “and”. It was further argued that what follows after the word “and” is a different and distinct concept or category from that which precedes the comma.

The court found that placing the comma before the word “and” indicates two separate categories namely, a business conducted under a BMW franchise agreement and those that are not conducted under a BMW franchise agreement. The court ruled that the applicant has the non-exclusive right to use the trade name ‘Auto Alpina’ in both or either of the said two categories.

The court went on to say that the same interpretation would be arrived at in considering the context, apparent purpose and material known to those responsible for the production of the clause.

The respondent’s attempts to enforce the limitation on the applicant failed and this case reaffirmed the importance of a drafter of a contract clearly understanding the use of punctuation so as to ensure that the parties’ intentions are accurately and unambiguously recorded in order to protect their rights.