“And/Or” – No More

The use of “and/or” in drafting or, for that matter, anything other than the most casual communications, is one of our pet peeves. It is a substitute for careful drafting and an invitation to ambiguity.

Ken Adams, in his Manual of Style for Contract Drafting – which we highly recommend to any serious drafter – devotes two pages to using, or perhaps, better said, mis-using, “and/or.” Mr. Adams observes that since the mid-20th century, judges and legal-writing commentators have railed against the use of “and/or” to convey the meaning of the inclusive “or.” He makes the following points:

• it is often used when the only possible meaning is that conveyed by “or.” For example, “Acme shall incorporate the Subsidiary in Delaware and/or New York.”
• it is confusing to use “and/or” in language of obligation or prohibition. Instead of “Acme shall purchase Widget A and/or Widget B”, say “Acme shall purchase Widget A or Widget B, and may purchase both.”
• if “and/or” is used to list more than two items, it is unclear if the “or” is inclusive or exclusive. In other words, A, B, and/or C could mean either one or all of A, B, and C, or one or more of A, B, and C.

Notwithstanding the foregoing, Mr. Adams says that given all that ails traditional contract language, it seems that and/or “has gotten more than its fair share of spittle-flecked invective.”

Now, we can add a recent New Jersey Appellate Division decision to the list, as reported in the February 1, 2016 New Jersey Law Journal. In State v. Gonzalez, (App.Div. 2016), the court, in an opinion by Judge Clarkson Fisher, Jr., ordered a new trial for a man serving a 19-year sentence for robbery and assault because the trial judge repeatedly used the phrase “and/or” in her jury instructions. Noting that clear jury instructions are essential for a fair trial, Judge Fisher observed that “the repeated use of ‘and/or’ wrung from the charge any clarity it might have otherwise possessed.” Observing that the trial judge used “and/or” at least 18 times in her jury instructions, the court ruled that the instructions were “hopelessly ambiguous and erroneous in important respects.” The court then cited a long history of cases finding fault with the phrase, calling it a “verbal monstrosity,” “neither word nor phrase,” “an inexcusable barbarism…sired by indolence” and “a mongrel expression.”

So, should you continue employing “and/or” in your document drafting? By all means, if you want your draftsmanship someday becoming the subject of a reported decision where you, too, can be criticized for your lazy use of ambiguous language. Or, alternatively, you can just stop using “and/or.”