Tuesday, August 2, 2011

Why you should never use "and/or"

From the Canadian legal blog Slaw:

Although there is some support for “and/or,” the weight of authority is against its use, primarily for two reasons: (i) its use can result in uncertainty, (ii) it is not a real word.

I definitely fall into the camp of those who “wax indignant” over its use (these are Ken Adams’s words at p 109 of his Legal Usage in Drafting Corporate Agreements (Westport, CT: Quorum Books, 2001). And even though Adams seems to tolerate on the same page the convenience of “and/or” as merely “one of the more benign drafting evils” (in appropriate circumstances where it does not result in ambiguity), he “tends to avoid using and/or” in his own drafting (he also provides more commentary, and examples, in his book A Manual of Style for Contract Drafting, 2d ed (Chicago: ABA Section of Business Law, 2008) at paras 10.56 to 10.60).

Otherwise, the strongest support in favour of “and/or” that I have found comes from my copy of Fowler’s Modern English Usage, 3d ed (London: Oxford University Press, 2000), where it is suggested that “and/or” was first recorded in the mid-19th century in legal contexts (hardly a reason to support its continued use). The phrase is described as “a formula denoting that the items can be taken either together or as alternatives.” The text further notes that it is “still employed from time to time in legal writing” but then notes it “verges on the inelegant when used in general writing” and that the “more comfortable way of expressing the same idea is to use ‘X or Y or both,’ or, in many contexts, just ‘or.’” (p 53).

In my opinion, the better view is to simply avoid “and/or” all together, as suggested by a number of leading authorities [that includes The Chicago Manual of Style, Strunk & White and Bryan Garner].

If you want to see the full roster of authorities who frown on the "and/or" construction, click here and scroll down.

Hat tip to Ken Adams's The Koncise Drafter.

(jbl).


http://lawprofessors.typepad.com/legal_skills/2011/08/why-you-should-never-use-andor.html

| Permalink

Comments

Post a comment