Judges and commentators have long fulminated against and/or.
One particularly irate judge—perhaps spittle-flecked, with neck veins bulging—referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean.”
And here’s David Mellinkoff:
The allure of brevity and the phony appearance of mathematical precision convince the lazy, the ignorant, and the harried that at one stroke and/or covers all the possibilities of both conjunctions.
But I can’t get too worked up about and/or. After all, it does have a specific meaning—X and/or Y means X or Y or both. But X or Y or both is clearer than X and/or Y, so in drafting I’d use and/or only in those very rare circumstances where, due to the nature of A and B, and/or represents the best of a bad job.
But drafters often use and/or when the meaning A or B or both doesn’t work, hence the tirades against it.
Consider an unpublished Minnesota Court of Appeals decision issued yesterday in the case of Carley Foundry, Inc. v. CBIZ BVKT, LLC, No. 62-CV-08-9791 (Minn. Ct. App., Apr. 6, 2010) [pdf]. (My thanks to the vigilant readers who brought it to my attention.) A side issue in the litigation was release language that covered claims Carley “may have in the future, and/or which were, should have or could have been brought in connection with the Litigation.” The court had the following to say:
The phrase “and/or” is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. Laypersons often use the phrase and, surprisingly, lawyers resort to it from time to time. It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the “and” and the “or” in the context of the subject matter. Or the drafter could express a series of items as, “A, B, C, and D together, or any combination together, or any one of them alone.” If used to refer to a material topic, as here, the expression “and/or” creates an instant ambiguity. Furthermore, as one legal-writing authority noted, a bad-faith reader of a document can pick whichever one suits him—the “and” or the “or.” Bryan A. Garner, Looking for Words to Kill? Start with These, Student Law., Sept. 2006, at 12-14. At the very least, this sloppy expression can lead to disputes; at the worst to expensive litigation.
Here’s my take on this sort of problem. I don’t think the culprit is and/or. Instead, the problem is the fiendish subtleties involving use of and and or. In using or in a given context, a drafter might have failed to spot an ambiguity created by that or. Or the drafter might have simply used or when and would have been the better choice. Similar issues dog use of and.
To my mind, rather than representing some isolated and particularly heinous solecism, misuse of and/or is just another manifestation of the confusion that can arise out of and and or.
Consistent with that, notice how the language at issue in the Minnesota case wasn’t susceptible to a simple X or Y or both fix. It needed more help than that.
(If you want more on and and or, chapter 10 of MSCD contains, I believe, the most comprehensive discussion of the topic you’ll find anywhere.)
12 thoughts on ““And/Or” as Scapegoat”
Good points, Ken. Here's another scenario where the problem isn't really the "and/or" but the failure of the writer to understand what is being communicated. I heard an anecdote that the following phrase ended up in litigation:
__ Check here if you cannot work nights and/or weekends.
This doesn't work. You need two check boxes:
__ Check here if you cannot work nights.
__ Check here if you cannot work weekends.
In computer science and electronics, the term OR means inclusive-or, while XOR means exclusive-or.
Perhaps in the law we need a third term "for the avoidance of doubt" (cut to scene of Ken banging forehead on table): "IOR," meaning inclusive-or.
In this day and/or age, when we have so many real problems like health care and/or terrorism, I think and/or feel that anyone who gets all hot and/or bothered by a silly and/or inconsequential issue like "AND/OR" should be flogged and/or kicked in the butt and/or shins.
Dan seems to suggest that the and/or-phenomena is a nowadays thing. [I don’t see that in Dan’s comment—KAA] In fact, it's something of the past centuries (maybe as old as the double space after sentences in English writing). Recently I saw a text of over 100 years old, referring to the society-declining signifying phenomena of and/or. It's of all times.
Nice to note: it is also not a typical English language phenomena. It's all over: in Dutch, people write en/of, in Italian and Spanish people write even less: e/o and y/o, respectively!
I'm not sure if it helps Dan: since a few years, in the Netherlands everyone is by law obliged to take health insurance; before that, for decades, everyone had the possibility to take basic (publicly funded) insurance cover.
What strikes me as so funny about this is that in formal logic, "or" can by itself mean "x or y or both." There is nothing about the disjunctive that requires only one or the other. It's amazing to me that these judges can compose such vitriol based on and/or.
Of course, for the purposes of keeping contractual language as ultimately clear as possible, it seems that and/or should not be used if for no other reason than that it is not clear that everyone reading that phrase will interpret it the same way.
It could be worse. In some languages, "and" and "or" are the same conjunction. (I have in mind the Hebrew letter vav, but there may be other lanauges as well.)
the spelling and pronunciation of the two conjunctions in Hebrew is different, so I don’t think there’s actual confusion (אוֹ = or and ו = and). also, ו is attached to words, and אוֹ isn’t.
In Hebrew the letter vav before a word means "and" and there is a seperate word for "or" (spelt with the words alef and vav, pronounced a bit like oh, as in the name Sandra Oh). Hebrew drafters use and/or all the time and there is an Israeli Supreme Court case from the 50s where a supreme court justice complains about this practice. His cry fell on deaf years.
what are your opinions on using either “and” or “or” in drafting a termination clause? if termination is triggered by failure to do both A AND B the threshold is higher as opposed to triggering termination for failing to do one OR the other.
Well, which meaning do you intend?
I am having a hard time finding any cases or articles on the matter. I am looking into abandonment clauses in pipeline or utility easements where the LO might bring an action to claim the easement was abandoned due to non use. However the easements typically do not define use and the abandonment language typically says either “…cessation of maintenance and use of the pipeline..” or “so long as pipeline is being maintained and used” I would like to interpret the use of “and” as meaning the pipeline operator would have to cease both maintenance and use and therefore a line could be idle so long as it is being otherwise maintained. also, the fact that the term “non flow” or cease to transport product was not used lends to my interpretation. however as I mentioned there is very little discussion as to this issue, I suspect it either has not been litigated or very seldom and I have simply not found the needle in the haystack yet.
Read the relevant chapter of MSCD4.