August 29, 2007
Adams on the Rule of the Last Antecedent
Contract drafting specialist Ken Adams of the excellent adamsdrafting.com site (left) reports that the battle is over in Canada's Great Comma Case (though the war is still going on) -- but that it ended with a whimper, not a bang.
In the case, Bell Aliant attempted to terminate its five-year contract with Rogers Communications, relying on the following language:
Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.
The question for Canada's Radio-Television and Communications Commission is whether the last "unless" phrase modifies only the previous "and thereafter" clause, or whether it also modifies the prior clause, which provides for the initial five-year period. The Commission, says Adams, originally applied the Rule of the Last Antecedent (yes, there is such a thing, apparently) to hold that the comma before the "unless" meant that the clause modified both of the prior clauses.
It's now reversed itself, but did so by relying on the French version of the contract, which apparently didn't have the confusing language. Adams offers his own take on the case (he was an expert witness for Rogers) in an op-ed piece in the Globe and Mail.
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