“And/Or” as Scapegoat

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Consider an unpublished Minnesota Court of Appeals decision issued yesterday in the case of Carley Foundry, Inc. v. CBIZ BVKT, LLC, No. 62-CV-08-9791 (Minn.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.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.