Some stuff I’ve come across online recently has reminded me of the New York indie rock band, VampireWeekend, not only the high-profile controversy over the “frustrating” lawsuit against them by a model who claims that they did not have her permission to use an image of her on their “Contra” album cover, but also the lyrics of their 2008 single “Oxford Comma” (pictured left; see background | lyrics | music | YouTube). The Oxford comma is an optional comma before the word ‘and’ at the end of a list; in the song, it’s a metaphor for unnecessary pretention in interpersonal relationships; and in its grammatical meaning it has recently been the focus of discussion by pedants, geeks, and drafters.
Pedants
The Oxford comma (aka the Harvard comma or the Serial comma) is the comma in a list that goes before the “and” or “or” that precedes the last item in the list. In the title to this post, it’s the comma between “geeks” and “and”. In such a straightforward setting, using it ornot is more a matter of individual preference than grammatical necessity; and there are many people whose preference is to use it. However, there are times when it is absolutely crucial:
… the important thing about it, though, regardless of its name, is that it looks like any ordinary comma, and, for the most part, acts like any ordinary comma, except that this comma, plain as it is, does something extraordinary–it guards against the ridiculous. … what if a young lady places an ad in the ‘Personals’ to tell us that she enjoys dining out, long hikes in the woods, holding hands and playing the guitar. I play the guitar, and let me assure you, it is difficult to hold hands and play the guitar.
In this example, the absence of the Oxford comma leads to an ambiguity which its presence would avoid. Where items in a list are equal, they sould be treated equally, and thus separated by a comma. The comma may reflect the cadences of the spoken word; it may be necessary in computer programming; it is often simply more natural to use it. For all these reasons – as the title to the post implies – I prefer to use it. It will rarely be ambiguous, and it will usually be more accurate.
… use of the serial comma expands the possibilities for communicating nuance of meaning, and is therefore an unmitigated Good Thing. The classic illustration is this:
(a) “The woods are lovely, dark and deep”
versus
(b) “The woods are lovely, dark, and deep”
In the first edition of Frost’s Collected Poems, that line (from “Stopping by Woods on a Snowy Evening”) was printed as in (a), but it was corrected in subsequent editions. The point is that the two lines have different meanings — in the first, the woods are lovely; “dark and deep” then becomes a descriptor or illustration of that loveliness. In the second, the woods have three separate characteristics: they’re lovely, they’re dark, and they’re deep. …
In this way, it becomes clear that insistence upon the Oxford comma is not a matter of pretention or pedantry, but of accuracy and necessity.
Drafters
Though the absence of the comma is often comic, it can equally well have serious consequences. Accuracy matters. Roger Casement is said to have been hanged on a comma in the Treason Act. A current case against Chrysler in the US, for US$16,000 in damages and US$124,894.02 in legal fees, turns on the presence of a comma. More than Can$2m wereatstakein a disputebetween Rogers Communications Inc and Aliant Inc before the Canadian Radio-television and Telecommunications Commission. The contract was signed in English and French; its English draft provided it that
shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.
The CRTC originally held that, based on the rules of punctuation, the comma in question allows for the termination of the contract at any time, without cause, upon one-year’s written notice. However, having compared the French draft, which provided that the contract “demeure en vigueur pour une période de cinq ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq années, à moins d’un préavis écrit de résiliation à l’autre partie un an avant l’expiration du contrat” (emphasis added), it then held that termination can only occur upon notice one year prior to the end of the initial five-year term or one year prior to the end of a renewed five-year term.
… the question for the contract drafter is not how to make sense of a dispute but how to avoid dispute in the first place.
The simplest approach would be always to use the serial comma in a simple list of three or more items. It’s very unlikely that you’d find yourself in a situation where a serial comma creates ambiguity rather than resolves it.
Even if Vampire Weekend don’t care about the Oxford Comma, lawyers – whether pedants, geeks, or drafters – most definitely should.
Warning: plot spoilers When the movie begins, our hero, Shrek, is suffering a classic mid-life crisis; he is dissatisfied with married life, and pining for the old days, when he was a terrifying ogre rather than a domesticated tourist attraction. Rumpelstiltskin, the evil and manipulative magic deal-maker, offers Shrek the opportunity to spend a day as a real ogre again, in return for another day from Shrek’s childhood. The YouTube clip at the top left is the scene in which Rumpelstiltskin cajoles Shrek into agreeing. Having signed on the dotted line, Shrek is transported into an alternate reality. At first, he enjoys being fearsome one again. But the catch – and there’s always a catch – is that the day Rumpelstiltskin takes is the day of Shrek’s birth. This means that Shrek was not there to rescue Princess Fiona in the first movie; and her desperate parents, King Harold and Queen Lillian, turned to Rumpelstiltskin, and signed over the kingdom of Far Far Away to him in return for having all of their problems disappear. They disappeared, and the kingdom is now subject to Rumpelstiltskin’s tyrannical rule. It is a world where ogres are hunted criminals and Fiona leads the resistance; and when Shrek’s day as a frightening ogre is over, it will all be as if he had never existed. However, Donkey reveals to Shrek a sneakily-hidden exit clause in his contract with Rumpelstiltskin: if Shrek receives “True Love’s First Kiss”, the contract will be rendered null and void. So, the third act of the movie turns on Shrek’s efforts to get Fiona to fall in love with him and kiss him before the morning.
Paul Raffield, University of Warwick School of Law, has published “The Comedy of Errors and the Meaning of Contract,” in Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (3 Law and Humanities (2009) [link]). Here is the abstract.
This article examines the theme of contract and its symbolic connotations of societas or fellowship, in the context of Shakespeare’s [link] The Comedy of Errors [link] and its performance on 28 December at the Gray’s Inn revels of Christmas 1594. Central to the argument is the extraordinary advancement of contract law in Elizabethan England, and in particular the significance of the promise to the status of binding bilateral agreements. In particular, the analysis considers the promotion of assumpsit [wikipedia] at the expense of actions for debt [especially after Slade's Case (1602) 4 Co Rep 91a] in relation to a society (and a legal profession) whose mores were heavily influenced by humanist notions of the individual conscience, which simultaneously bound the subject of law into an ethical association with his fellow citizens and freed him (at least putatively) from the constraints of immutable, ancient law. The Comedy of Errors provides a perceptive critique of a society which is bound together only by the market, having abandoned or mislaid the true bonds of friendship and love, through which a just community may be recognised.
For a low grade to be a breach of contract, there must first be a contract, and courts are slow to find the existence of such a contract, in part because they are reluctant to get involved in grading disputes. Thus, for example, in Keefe v New York Law School (17 November 2009) (hat tips: ContractsProf Blog | Adjunct Law Prof Blog) York J held that general statements of policy in a school’s bulletins, circulars, catalogues, handbooks and website are not sufficient to create a contract between a student and law school; rather, only specific promises that are material to the student’s relationship with the school can establish the existence of a contract. (Compare and contrast the decision of Murphy J in Tansey v College of Occupational Therapists Ltd[1986] IEHC 2, [1995] 2 ILRM 601 (27 August 1986)). York J provided an important policy justification for this approach:
As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student’s challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities is beyond the scope of judicial review. …
If not Ghostbusters, then perhaps your lawyers. They would probably consider at least two situations.
First, in the context of the formation of contracts, a misrepresentation is a false statement of fact made by one party, which causes another party to enter into the contract, and which gives that latter party the right to set the contract aside. So, if you were spooked enough to ask whether the house was haunted, and if the sellers were skeptical enough to say that it wasn’t, and if a court were to find that it was in fact haunted, then you would be able to set the contract aside for misrepresentation.
Second, whilst there is no general duty of disclosure, particular duties of disclosure can – exceptionally – arise; in such cases, a material non-disclosure by one party, which causes another party to enter into the contract, gives that latter party the right to set the contract aside. So, even if you didn’t ask whether the house was haunted, but if a court were to find that it was, that the sellers knew about it, that they chose not to tell you about it, and that they should have done, then you would be able to set the contract aside for this material non-disclosure.
Of course, both of these hypotheticals turn on the fact that the court would find as a fact that the house was haunted. And no court would do that, would it?
Well, in Stambovsky v Ackley 572 NYS 2d 672 (NY App Div 1991) (blog post | ContractsProf Blog here and here | full text | the house | wikipedia), the New York Court of Appeals confirmed the orthodoxy that the doctrine of caveat emptor imposes no duty upon the vendor of property to disclose any information concerning the property; but it held that, by way of exception, a duty of disclosure could arise if there is some conduct on the part of the vendor which constitutes “active concealment”. Moreover, in an entertaining decision citing Hamlet and Ghostbusters (the movie and its theme song), the Court held that since the seller had deliberately fostered the public belief that her house was haunted, she was estopped from denying that it was, and it followed that
…. as a matter of law, the house is haunted.
The purchaser was not a local and was unaware of the house’s reputation, which the seller actively sought to conceal during the negotiations for the purchase and sale of the house:
It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971] [[5th ed here]]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission … is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.
Hence, on these unusual facts, the court allowed the purchaser to rescind or set aside the contract. the facts may have been unusual, but the legal structure of the argument was not. It is a classic case of material non-disclosure. An excellent example is provided by Obde v Schlemeyer 56 Wn 2d 449, 353 P2d 672 (1960). Here, the Supreme Court of Washington held that seller of house should have told buyer that it was infested by termites. Although the vendors knew there was widespread termite infestation in the residence, the purchasers did not. The vendors argued that they had no duty to inform the purchasers of the termite condition because the purchasers had not so inquired. This court, however, held that such a duty existed, and allowed the purchasers to set aside the contract. Moreover, Obde v Schlemeyer has been several times referred to as a classic example of fraudulent concealment (Hughes v Stusser 68 Wn 2d 707, 415 P2d 89 (1966); Atherton Condominium Association v Blume Development Co 115 Wn2d 506, 799 P2d 250 (1990)). Once the Court in Stambovsky found that the seller was estopped from denying that the house was haunted, then it was exactly the same as Obde: in both cases, an important fact was concealed by the seller, and it was such an important fact that it would have changed the purchaser’s mind had it been disclosed. As the New York Times observes, in an article headlined Some Buyers Regret Not Asking: Anyone Die Here?
Today, a home associated with a murder or suicide can become what some brokers call a stigmatized property. So can homes reputed to have a resident ghost. Although they are free of physical defects like leaky roofs or lead paint, such properties can so spook potential buyers that they linger on the market and command less than market value. Or, the discovery of the death can prompt a sudden change of course.
The moral of the story, I suppose, is that a seller might have no general duty to speak, but should nevertheless consider whether silence really is the best policy in the face of stigmatizing facts. For example, it seems that Joan Rivers is seeking to sell her Fifth Avenue penthouse apartment, and there are reports that purchasers may get not only the formal dining room and ornately panelled library but also the ghost of a previous owner, so the question is whether she should come clean about the apartment’s additional occupant.
However, the law is different on this side of the Atlantic. Sykes v Taylor-Rose [2004] All ER (D) 468, (2004) 2 P&CR 30, [2004] EWCA Civ 299 (27 February 2004) is a graphic example. The defendants sold their house eighteen months after discovering that it had been the scene of a gruesome and infamous murder; the plaintiffs purchased the house, but learned of its history seven months later when it was featured on a television programme about the murder. (Itwasaverycontroversialcase, whichhasfeaturedinmanynewsstories). The Court of Appeal reaffirmed the orthdoxy that there is, in property transactions, no general duty of disclosure (so that the doctrine of caveat emptor applied without exception). Failing to disclose a history of this kind would amount to active concealment giving rise to an actionable non-disclosure in the US, but not in the UK. Perhaps, therefore, the millionaire businessman who claimed that ghosts forced him to flee the 52-room Nottinghamshire mansion he had bought the previous year should instead have kept silent and simply sold the mansion. In that case, instead of calling Ghostbusters, or his lawyers, he should have called his estate agents. And if you’ve bought a haunted house, perhaps you might wish to do the same.
You’ll undoubtedly recall that, back in May, we mentioned that Miss California USA (aka Donald Trump) might terminate then-Miss California Carrie Prejean for breach of contract; Prejean was in fact de-crowned, and she sued the pageant organizers for a whole host of things, including discrimination based on her anti-gay marriage stance and violation of her privacy when a representative acknowledged publicly that she had breast implants. The franchise wasted no time with a countersuit and, according to CNN, one of the claims seeks to recover some $5000 the pageant organizers loaned Prejean for the breast implant surgery – pursuant to an oral agreement between the parties.
Some stories, even contracts profs can’t make up. This ugly tale of caution is one of them.
Update (12 November 2009): the case has settled, but controversy continues to follow her.
This year, more than any other year, my students are telling me that they … they find it frustrating because contracts law seems to be set up to protect the well-resourced and the knowledgeable. Sure, they may be able to advise their clients on how to protect their legal interests, but only by adopting strategies designed to exploit the credulity, timidity and distraction of the weak. …
This time last year, I found myself explaining to concerned parents at the Higher Options Fair that law students’ small lecture load does not necessarily mean a small work load. Plus ça change. My colleagues have found themselves explaining much the same thing today at this year’s event. Briefly, law students should spend considerable amounts of time on independent reading, developing research skills (how to find what is relevant) and honing discernment and judgment (how to decide what to use of what is read) – these are all important practice skills which they learn in college.
In the US, the Socratic Method is widely used in Law Schools to teach these skills, and it is one of the driving dramatic forces in The Paper Chase, a book/movie/tv series on which I have already commented here and here. Its great character was John Houseman’s inconic Contracts Professor, Charles Kingsfield – the clip below is the first time we meet him in the tv series:
The case being discussed in the clip is Hawkins v McGee 84 N.H. 114, 146 A. 641 (Supreme Court of New Hampshire, 1929), and Kingsfield’s victim is James T Hart, the confused first year law student, played by Timothy Bottoms, who is the central character in the series. But even though the series is nominally about Hart, as Tim Zinnecker recently commented on The Faculty Lounge, Houseman’s Kingsfield steals the show in every scene in which he appears. Timothy Burke on Easily Distracted acknowledged that calling students up on the carpet in an imperious Professor Kingsfield fashion is a beautiful style of teaching when done well (though he preferred the approach of his high school English teacher, who taught with passion). Kingsfield’s literary creator, the author John Jay Osborn Jr, noted A Change in Professor Kingsfield–and His Creator: over the course of book/movie/tv series, he grew more complicated. Todd J. Zywicki on the Volokh Conspiracy posed the question Who Was the Basis for Professor Kingsfield?, and The Faculty Lounge adds a few more candidates to the list. Moreover, in a tribute to the character’s enduring appeal, Michael Vitiello has written a full law review piece about him: “Professor Kingsfield: The Most Misunderstood Character in Literature” 33 Hofstra Law Review 955 (2005) (pdf). Indeed, in what was no doubt an intentional reference, the 2002 movie The Socratic Method (imdb), about first year law students in a fictional California law school, features a Professor Houseman.
My continuing mission is to become like Kingsfield every day. I teach Contract. That’s a start.
Walled gardens and forbidden cities http://bit.ly/cOSOQJ characteristically perceptive blogpost from TechnoLlama 2010/09/04
RT @globalhighered: The End of Tenure? [review of two 'feisty new books' + ?s about US universities as 'engines of inequality'] - http:/ ... 2010/09/04
Some stuff I’ve come across online recently has reminded me of the New York indie rock band, Vampire Weekend, not only the high-profile controversy over the “frustrating” lawsuit against them by a model who claims that they did not have her permission to use an image of her on their “Contra” album cover, but also the lyrics of their 2008 single “Oxford Comma” (pictured left; see background | lyrics | music | YouTube). The Oxford comma is an optional comma before the word ‘and’ at the end of a list; in the song, it’s a metaphor for unnecessary pretention in interpersonal relationships; and in its grammatical meaning it has recently been the focus of discussion by pedants, geeks, and drafters.
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