Tuesday, June 22, 2010

Another Court Comes Out Against the Use of "And/Or" in Drafting

We've been blogging about "and/or" for a long time.  Here, for example, is a post from 2007.

Well another court has added its voice to the chorus of those who find "and/or" to be abhorrent.  On page 8 of the decision from the Minnesota Appellate Court in Carley Foundry Inc. v. CBIZ BVKT, LLC,, you will see the court say this:

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.



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In case it's of interest, here's a link to my April blog post about this case: http://www.adamsdrafting.com/2010/04/07/and-slash-or-as-scapegoat/.

Posted by: Ken Adams | Jun 22, 2010 5:18:31 AM

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