Legal drafting: the case of the expensive comma

A recent news report from Canada discussed a contract that was canceled because an unnecessary comma allowed one party to get out of the deal. Here is the sentence:

• This agreement 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.

One party believed the contract was good for at least five years, and the other party believed it could get out anytime with one-year's notice. I think the two commas frame a parenthetical insertion, and you could read the sentence without the insertion like this:

• The agreement shall continue in force for a period of five years from the date it is made unless and until terminated by one year prior notice in writing.

This reading favors the party who wants to get out anytime with one-year's notice, and that's what happened. The article suggests that if the second comma had been omitted, the five-year term would have been clear. Agreed. In fact, if the five-year term is intended, neither comma is needed.

I'd simply like to suggest you can make the five-year term clear without worrying about commas--if you're willing to write in short sentences:

• This agreement continues in force for five years from the date it is made. After the first five-year term, it continues in five-year terms unless either party terminates it by one-year's prior written notice.

The original sentence has 39 words--not terribly long--but the revision has two sentences with an average of 19 words. (Of course, I made other changes to render it plainer. I couldn't help myself.)

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