June 1, 2008 Appropriate Use of “And/Or”?
In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause:
the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial penalty, or (2) is related to the Employee’s employment
Conceivably, an employee charged with a crime that is both punishable by a custodial penalty AND related to his or her employment could claim that that crime doesn’t fall within the scope of the provision, which phrases the two criteria as alternatives. That’s a hopeless argument, but maybe one would nevertheless want to preclude the employee from being able make it.
The two criteria are, however, sufficiently wordy that the structure A or B or both wouldn’t work. The best alternative I could come up with on five minutes’ thought is “or (3) satisfies both of the preceding criteria.” That seems cumbersome; I’d prefer and/or. But the question is whether precluding a ludicrous interpretation is worth the nuisance of adding and/or: it’s a bit unclear, and it could well provoke comment. I’m inclined to do without and/or or any wordier alternative
What do you think?
June 2, 2008 at 8:17 am
Ken:
I don’t see any problem with saying:
“. . . or (3) both.”
I don’t see any other “both” that “both” could be.
Chris
June 2, 2008 at 8:29 am
Chris: My problem with your solution is that “the Employee is charged with any crime that … (3) both” doesn’t work. But I’ll need to think about that some more. Ken
June 2, 2008 at 6:04 pm
Ken,
I’m with you on this one since the list only has two items, but I would probably me more likely to stick with just “or.” Think of it this way: if you have a list of six or seven possible grounds for terminating an employee “with cause,” would you add a clause at the end saying “or any combination of the reasons”?
I think it would be absurd for a person terminated with cause to argue that the word “or” meant that he could only be terminated for cause if his conduct fell under one and ONLY ONE of the listed criteria. I don’t see that having a list of only two items is much different.
June 2, 2008 at 7:07 pm
David: Yes, the argument would be ludicrous, but oftentimes it’s best to eliminate the possibility of argument on the subject. I was recently reminded of litigation relating to ambiguity in which one of the litigants was advocating an interpretation that wasn’t much less ludicrous than the one discussed in this post. The question is at what point the alternative meaning is too far-fetched to consider. Ken
June 3, 2008 at 3:59 pm
Ken: I use and/or to reduce the amount of awkward writing. For example, consider the following introductory clause: “BY INSTALLING AND/OR USING THIS SOFTWARE.” This clause could be written as follows: “By installing, using, or installing and using this software.” To me, either clause works but the former is more compact and has the same meaning as the latter: doing one of the three things triggers the clause. Regarding the above phrase, I would probably re-write it not using and/or as follows: “the Employee is charged with any crime that (i) is punishable by a custodial penalty, regardless of whether or not all potential punishment for the crime may be accompanied (a) any fine and/or (b) other non-custodial penalty, (ii) is related to the Employee’s employment, or (iii) includes both (i) and (ii).”
June 3, 2008 at 4:06 pm
Mike: Can you use the software without installing it? And I’m not crazy about your clause (iii), in that I don’t think the verb include works in this context. Ken
June 15, 2008 at 5:29 am
Hi Ken -
In your example, why not just say:
the Employee is charged with any crime that satisfies either or both of the following criteria: (1) the crime is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial penalty; or (2) the crime is related to the Employee’s employment.
If there were multiple criteria, the intro could be “satisfies one or more of the following criteria.”
Note that I changed one of your example’s commas to a semicolon. That’s because the “instead of” clause is sufficiently confusing (multiple or’s and multiple negations) that I wanted to ensure that its scope couldn’t somehow overflow the bounds of clause (1) and be carelessly read to affect clause (2).
Really, clause (1) should be redrafted too, in my opinion, but that’s beyond the scope of this article topic.
Nice blog, btw.
June 15, 2008 at 8:04 pm
Jonathan: Great comment. My one change would be to use and rather than or between the two enumerated clauses.
But I’m still undecided whether it’s worth making it explicit that a crime that satisfies both criteria falls within the scope of the provision. It wouldn’t be reasonable to argue otherwise, even it it weren’t make explicit.
Incidentally, how would you redraft clause (1)?
Ken
June 15, 2008 at 8:35 pm
Hate to say it, but the best thing between the two clauses is actually “and/or,” since that’s exactly what we mean: either
(1) AND (2)
or
(1) OR (2)
In any case, “and” between (1) and (2) bothers me, because it seems more definitive than “or”, and thus seems to exclude “or” – at least to my eye and/or (smile) ear.
Re redrafting (1): I’d prefer “the crime is punishable by a custodial penalty, instead of or in addition to any other penalty”.
[Note - I deliberately put the punctuation outside the close quote when I quote contract clauses (as in the above comment), in order to be explicit as to the language I'm referring to. I don't see any reason to follow a typographer's convention at the possible expense of clarity.]