[Reminder: Posts in the “Jealous Mistress”
series are draft chapters of a book to be published in the not too distant
future. They are copyrighted but are still works in progress, so any suggestions
will be appreciated.]
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The great
justice Oliver Wendell Holmes, Jr., once penned this insight: “A word is not a crystal,
transparent and unchanged; it is the skin of a living thought and may vary
greatly in color and content according to the circumstances and time in which
it is used.”
Non-criminal
cases often require interpretation of a law or contractual provision, and the outcomes
must be announced in carefully written opinions to serve as guidance for others.
So words matter. And sometimes even punctuation matters. Three cases are food
for thought.
Tomato v. Fruit
Is a tomato
a fruit? The US Supreme Court had to extinguish
this burning question more than 125 years ago. US tariff laws at the time imposed
a ten percent duty on imported vegetables but not on fruit. When the tax
collector of the port of New York imposed the fee on tomatoes imported from the
West Indies, the plaintiffs sued to have their money refunded because, they
argued, tomatoes are not “vegetables.”
Botanically
speaking, they’re right: tomatoes are indeed a fruit. (By the way, so are
cucumbers, squashes, beans and peas.) They’re the fleshy, seed-bearing part of
a flowering plant. But people think of these foods as vegetables. They contain
less sugar than most fruits, and they are served with the main course of a meal
and not, like fruits generally, as dessert.
Faced with
this question in Nix v. Hedden (1893),
the US Supreme Court decided that, consistent with the popular perception that
it is not fruit-like, a tomato is to be considered a vegetable for the purpose of customs regulations and
a tax is due. So much for “free” trade a century or more ago.
Taco v. Sandwich
Similarly, a
Massachusetts court once needed to determine whether a taco is a “sandwich.” A Panera
Bread Company franchisee operated under a lease guaranteeing it would be the
only sandwich shop in a certain shopping center in Worchester, Mass. When Qdoba
Mexican Grill tried to open a competing restaurant, Panera filed suit. It
argued that tacos, burritos, and other tortilla-based foods are sandwiches and,
therefore, that under the terms of Panera’s lease Qdoba must be barred.
Forced to
rule on this tasty question, the trial judge did a little research over lunch.
(Soup or salad, not a sandwich, so as not to prejudice the outcome.) Then he
returned to the courtroom armed with dictionaries and common sense to announce that
a taco is not a sandwich because a sandwich consists of filling between two slices
of bread and is made to be picked up by the hands. Tacos, burritos, quesadillas,
etc., are not made that way and are usually eaten with a fork.
We can
quibble. What about an “open face sandwich?” It is made on one slice of bread
and eaten with a fork. Is it then not a sandwich? And a taco is made with a tortilla,
a kind of bred, and is often picked up for eating. Is it a sandwich in that
configuration? And Does it matter in what section of the menu—“sandwiches” or
“entrees”—an item is found? What about an Oreo cookie or an “ice cream
sandwich”? What are they?
One might
have thought that the word sandwich came
as close as any to being “a crystal, transparent and unchanged,” but apparently
not. Words can mean one thing in one context, and something else in another. So
again I say: words matter!
Even Commas Matter
Punctuation
matters too. It can be an aid to understanding, or it can contribute to a
confounding muddle.
[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. [Italics added.]
(NB: parenthetical numerals,
such as in this provision, are a legal affectation and should be expunged with
vigor wherever they are found.)
Suppose it is now just two years
after the contract was signed and the lessor wants to give notice of a rent
increase to begin year four. Can they do so? Or does the notice provision only
apply in the “successive five-year terms.”
Rogers
Communications, the cable-TV company, argued that the intent was to lock in a
price for five years with extensions thereafter on terms to be agreed from that
point forward. That would make good business sense, but it’s not what the
contract says. Note the comma after the word “terms.” Without it, the right to
cancel would not apply during the first five years. But the comma turns the phrase
into a parenthetical, and a
parenthetical is an adjunct that is not essential to the meaning of a sentence.
In deciding against
Rogers, Canada’s telecommunications commission (the equivalent of our FCC)
wrote: “[this] wording … is clear and unambiguous, and when given its plain and
ordinary meaning, allows the termination of the lease, by either party at any
time, after providing one year’s prior written notice.”
There is irony
in the unnecessary commas in this ruling, but even more interesting is that it took
the author about 1,200 words to explain why the contract is “clear and
unambiguous.” One might have thought that if the meaning were so plain and
ordinary there would be no dispute or the opinion might have read, “It means
what it says. Case dismissed.”
That extra
comma—a tittle, a jot, a trifle in the context of the entire contract—cost Rogers
Communications more than $2 million (Canadian). Presumably, cable TV
fees for broadcasting NHL games went up the following year. ■
© 2020,
J. Stuart Showalter
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