[Revised 6:30 p.m. EDT, October 13, 2012, to reflect suggestions by Rodney Huddleston.]
Thanks to a recent case, I stumbled on a subset of ambiguity associated with or.
Consider Ohio Rev. Code Ann. § 1705.35 (West):
Instruments and documents providing for the acquisition, mortgage, or disposition of property of a limited liability company are valid and binding upon the company if the instruments or documents are executed by one or more members of the company or, if the management of the company has not been reserved to its members, by one or more of its managers.
If a member of a limited liability company whose management has not been reserved to its members signs a promissory note and mortgage (fraudulently) on behalf of the LLC, are those documents valid under Ohio Rev. Code Ann. § 1705.35? The Ohio Court of Appeals considered that issue in Brooks Capital Services, LLC v. 5151 Trabue Ltd. (PDF copy here). A reader told me about this case; he learned of it via an item circulated on the LNET-LLC listserv by Russell R. Rosler of the Columbus office of the law firm Vorys.
The lender said that under the statute, loan documents signed by one of the members served to bind the LLC; the LLC obviously thought otherwise. The trial court granted summary judgment to the LLC; the Court of Appeals affirmed.
In reaching its conclusion, the Court of Appeals said that “R.C. 1705.35 is ambiguous and susceptible of different interpretations.” The dissent disagreed.
I agree with the majority. The following example might make it easier to figure out the alternative meanings:
- [1] I’ll have dinner with Fred or, if she’s in town, Nancy.
- [1a] I’ll have dinner with Fred or Nancy; if Nancy is not in town I’ll have dinner with Fred.
- [1b] I’ll have dinner with Nancy if she’s in town; if she isn’t I’ll have dinner with Fred.
- [2] I’ll have dinner with Nancy, if she’s in town, or with Fred.
Example [1] is analogous to the language at issue in Brooks Capital Services, in that the second item (Nancy) has a conditional clause attached. Examples [1a] and [1b] are the possible alternative meanings of [1], with [1a] perhaps being the more natural reading; the Court of Appeals opted for the meaning analogous to [1b]; the dissent opted for the meaning analogous to [1a]. Examples [1a] and [1b] are also the possible alternative meanings of [2], with [1b] perhaps being the more natural reading. The difference between [1] and [2] is that in [2], the conditional clause is associated with the first item.
The difference between the majority and the dissent can be explained by the fact that, using the terminology of the philospher Grice, [1] says [1a] but implicates [1b]. In other words, the more restricted meaning of [1b] isn’t derived from a strict reading of [1]; instead, the reader understands that it’s implied. The implicature arises from referring at all to Nancy’s presence in town. If the choice were between Fred and Nancy, regardless of whether Nancy were in town, you wouldn’t need to refer to Nancy’s presence in town: if she’s out of town, it follows that I won’t be having dinner with her. (You want more on Grice and implicatures? Go here.)
The Court of Appeals offered the following analysis of the language at issue in Brooks Capital Services:
Had the legislature intended what plaintiffs contend, it easily could have stated that either a manager or member has the authority to bind the LLC in the transactions described in R.C. 1705.35. It did not. Similarly, had the legislature intended the interpretation the trial court ascribes, it again could have stated its intent more clearly, providing that a member may bind the LLC, but if the LLC is manager-managed, then the manager can bind the LLC in the transactions the statute describes. The legislature did neither, and we are left to determine, through application of the rules of statutory construction, what it intended.
I think the court got one part of its analysis mostly right, the other part wrong. First, saying that either a manager or a member has the authority to being the LLC would have eliminated the ambiguity, but the crucial component isn’t use of either … or, which the court subsequently emphasized, but instead elimination of the conditional clause. If a member can sign whether or not the LLC is manager-managed, there is no need to mention the if condition since it is self-evident that a manager will only be able to sign if there is a manager, in other words if the LLC is manager-managed.
And second, using but in the manner suggested by the court wouldn’t have been sufficient to preclude the possibility of a member’s signing.
The Court of Appeals sought to distinguish Ohio Rev. Code Ann. § 1705.35 from another provision of the same statute:
Nor does R.C. 1705.44 suggest a different interpretation of R.C. 1705.35. R.C. 1705.44 provides that “the members of a dissolved limited liability company who have not wrongfully dissolved the company, a liquidating trustee selected by those members, or, if the management of the company has not been reserved to its members, its managers may wind up the affairs of the company.” Although the language bears some similarity to both R.C. 1705.27 and 1705.35, it compels a different interpretation. Unlike R.C. 1705.27 and 1705.35, R.C. 1705.44 lists three entities possibly able to dissolve the LLC, its members, liquidators or managers, and connects them with “or.” Such language typically is construed to mean any of the three. To achieve the same result with the two alternatives used in R.C. 1705.27 and 1705.35, the statute would need “either-or” language lacking in both statutes.
I agree with the court’s conclusion. But it offered no analysis, so here’s mine, which uses the followings examples:
- [3] I’ll have dinner with Inga, Fred, or, if she’s in town, Nancy.
- [3a] If Nancy is in town I’ll have dinner with Inga, Fred or Nancy; if Nancy is out of town I’ll have dinner with Inga or Fred.
- [3b] * If Nancy is in town I’ll have dinner with Nancy; if Nancy is out of town I’ll have dinner with Inga or Fred.
- [4] I’ll have dinner with Inga or Fred or, if she’s in town, Nancy.
- [4a] If Nancy is in town I’ll have dinner with Inga, Fred or Nancy; if Nancy is out of town I’ll have dinner with Inga or Fred.
- [4b] If Nancy is in town I’ll have dinner with Nancy; if Nancy is out of town I’ll have dinner with Inga or Fred.
Example [3] is analogous to Ohio Rev. Code Ann. § 1705.44, in that it features three elements rather than two. Example [3a] is an alternative, and perhaps clearer, way of saying the same thing. But most readers of [3] wouldn’t conclude that it conveys the meaning of [3b], which is analogous to [1b] (hence the asterisk next to [3b]). That’s because if dinner with Nancy were to take priority, you would expect the three names to be presented not in a group of three, as in [3], but in two groups, with Nancy by herself and Inga and Fred in a second group separated from Nancy by one or, with a second or between Inga and Fred, as in [4].
One of the two alternative meanings of [4] is [4b], which is the same as [3b]. Obviously, if you wish to convey the meaning of [4b], you’d be advised to use the wording of [4b] rather than [4], so as to avoid also conveying the meaning of [4a].
The shortcomings in the court’s analysis of the ambiguity in Ohio Rev. Code Ann. § 1705.35, and the dissent’s unwillingness to see any ambiguity, serve as a reminder that you can’t assume that judges will have the semantic acuity required to sort out this kind of ambiguity. That’s why courts are misguided in excluding expert testimony on the subject of ambiguity. That’s something I discuss in this post.
Although the language at issue is from a statute, this sort of ambiguity could arise in a contract; that’s why it caught my attention. From the drafter’s perspective, the conclusion to draw from this dispute relates to the point I made in this post: if you use unambiguous language (in this case, language that’s analogous to the examples above in italics), you’ll be spared having to go through this sort of post mortem.
This whole discussion leaves me greatly confused. In the statute, it seems to me that the only *unambiguous* “or” in the clause is the one at issue in the case, and it is rendered unambiguous among other things by the conditional phrase attached to it.
In your examples, they all boil down to the same thing, assuming that the speaker remains in town. The speaker is only going to have dinner with one person, and cannot have dinner with Nancy if she is out of town. Therefore there is no ambiguity in any of the formulations you have used.
The problem with “or” of course is that English has no distinction between the “vel” sort of “or” (inclusive) and the “aut” (exclusive) sort. In the statute, it seems reasonably clear from context that the three “or”s used in lists are inclusive ones–since presumably a document–which can of course also be an instrument–that purports to be both a mortgage and a disposition (which it is in many jurisdictions) would be covered by the clause, not just one that accomplishes only one of the listed purposes.
On the drafting side, this raises my problem with your prescription in MSCD that “or” only be used in the exclusive sense. Since people don’t use it that way in speech *or* in writing, you would need to specify that rule somewhere, and using it would create many awkward passages, especially in short phrases. Unfortunately, our language is not devoid of context, and sometimes one simply has to rely on context to resolve ambiguities. “Either…or” is helpful when you have only two choices, but only an enumerated list can have that effect with more than two; making an enumerated list for Fred, Nancy and Inga would just look weird.
Vance: I’ll look at this closely later. For now, I’ll just say that the discussion of “or” in MSCD is way too complex to summarize in a few words, and I don’t think MSCD says what you think it does. And “either … or” by itself isn’t enough to eliminate ambiguity. Ken
Vance: I’ve been able to consider your comment more closely.
Some thoughts:
You say that the “or” at issue is rendered unambiguous by
the conditional clause. I, a prominent linguist, and the
majority of the court disagree. It’s precisely the conditional clause that
creates the ambiguity.
I don’t understand your second paragraph. The question is,
what are the speaker’s intentions. If Nancy is in town, does that mean the
speaker won’t be having dinner with Fred?
This ambiguity isn’t a function of the exclusive and
inclusive “or”. And my advice in MSCD isn’t that you use “or” to convey a
specific meaning; instead, it’s that to the extent reasonable you eliminate
alternative meanings.
Ken
Ken, is that “I, [who am] a prominent linguist, and…” or “I, [and] a prominent linguist, and …” Pesky lists!
Touché! That’s one good reason to stick with putting “I” at the end. But I was relying on my readers to be aware that I could no more claim to be a prominent linguist than I could claim to be a three-toed sloth.
Very interesting. OR has too many meanings! Better to say (sticking closely to the language above):
Instruments and documents providing for the acquisition, mortgage, or
disposition of property of a limited liability company are valid and
binding upon the company only if the instruments and documents are executed as follows:
(a) if the management of the company has been reserved to the members of the company, by
one or more members;
(b) if the management of the company
has not been reserved to its members, by one or more of its managers.
If there is no legal reason to do otherwise, I might be inclined to turn it around into positive terms to say:
…
(a) if the constition of the company vests the management of the company in its managers, by one or more managers;
(b) if the constitution of the company does not vest the management of the company in its managers, by one or more of its members.
No need to use OR at the end of paragraph (a) and it is unhelpful to do so.
That doesn’t sit very well with me. It just looks like you’re struggling to avoid using “or,” which (a) you are, and (b) isn’t a very natural way of expressing the disjunction. “Or” is just one of those very handy words that one can’t avoid using; best to come up with some disciplined way of handling it the way Ken advocates for “shall.” We just haven’t come up with it yet.
And in answer to Ken’s question about the second paragraph of my first post, I think it’s abundantly clear that the speaker is planning to have dinner with only one person. Nancy if she’s in town, one, TBD, from among Fred and Inga if she’s not.
No one’s trying to do away with “or”; it’s just that it can give rise to alternative meanings. Using, for example, “A or B or both” is a way to make clear which meaning you intend.
And with respect to the examples in my blog post, no one is suggesting that the speaker might be planning to have dinner with more than one person.
Vance, I am certainly struggling with this one. On reflection, I wouldn’t be concerned about putting “or” between (a) and (b) in my redrafting, as I think the rest of the rewording makes the context clear.
A half-formed thought is that we need find some way of clearly distinguishing between “may OR” and “must OR”. This may be another way of saying your inclusive and exclusive ORs, but I haven’t come across the latter so I don’t know. Do they exist in German?
I believe the distinction exists in Latin. Blame the Germanic hordes!