Do Not Use “and/or” in Legal Writing

I remain surprised at the number of intelligent, articulate, and well-read legal professionals who still use “and/or” in legal writing.

I am therefore creating this post to document a fairly complete list of authorities that support what I think is the better (if not obvious) view: never use “and/or” in legal writing (or any writing). And yes, I said “never.”

The Abomination that is “And/Or”

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:

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Chicago Manual of Style, 16th ed (Chicago: University of Chicago Press, 2010), Rule 5.220 at 266:

• and/or. Avoid this Janus-faced term. It can often be replaced by and or or with no loss in meaning. Where it seems needed . . . , try or . . . or both (take a sleeping pill or a warm drink or both). But think of other possibilities . . . .

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William Strunk Jr & EB White, Elements of Style, 4th ed (New York: Longman, 1999) at 40:

• and/or. A device, or shortcut, that damages a sentence and often leads to confusion or ambiguity.

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Bryan A Garner (with Jeff Newman and Tiger Jackson), The Redbook: A Manual on Legal Style (St Paul, MN: West Group, 2002), Rule 1.80 at 43:

• The slash . . . has few uses in formal writing except with dates and fractions. It is best known as the star character in two grammatical abominations: and/or and he/she. It is especially unfit for legal writing because it is inherently ambiguous.

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Bryan A Garner, The Elements of Legal Style, 2d ed (New York: Oxford University Press, 2002) at 103:

• and/or. Banish from your working vocabulary this “much condemned conjunctive-disjunctive crutch of sloppy thinkers” (citing Raine v Drasin, discussed below) . . . .

  The word or usually includes the sense of and:

  No food or drink allowed.

  That sentence does not suggest that food or drink by itself is disallowed while food and drink together are OK . . . .

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Robert C Dick, Legal Drafting in Plain Language, 3d ed (Scarborough, ON: Carswell, 1995), Rule 10 at 107-11:

• Never use "and/or."

  This linguistic aberration is dealt with harshly by the courts . . . .

  The eye tends to trip and stumble over this symbol. It has been promulgated largely by those who either have not taken the trouble to decide, or cannot make up their minds, which of the two words they mean.

Even in the French language, the phrase “and/or” appears to be an abomination. Robert Dick, in the book above (at 111), cites the following French commentary against the use of “and/or” (from a jurist who later went on to become a Supreme Court of Canada judge):
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Louis-Philippe Pigeon, Redaction et interpretation des lois (Quebec: University of Lavel, 1965) at 28:

• “Et/ou” est tout simplement inadmissible . . . . L’utilisation de cette conjunction, qui n’en est pas une, est une chose qui répugne au génie de la langue, aussi bien en anglais qu’en français. Il faut prendre le temps de réfléchir et construire la phrase de façon à ne pas recourir à cet artifice.

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For additional commentary, see the following articles (from oldest to most recent):

• “An And/Or Symposium” (1932) 18 ABA Journal 456, 524, 574 (editorials).

• “And/Or: Its Uses and Abuses” (1935-36) 42 West Va LQ 235

• “And/or” (1939) 118 ALR 1367.

• WT Bie, “Ambiguous Language in Insurance Policies” (1945) Ins LJ 653.

• “And/or” (1945) 154 ALR 866.

• Worth Allen, “Literary Fraction And/or” (1947) 24 Dicta 273.

• Dwight G McCarty, “That Hybrid and/Or” (1961) 66 Com LJ 280.

• Kermit L Dunahoo, “Avoiding Inadvertent Syntactic Ambiguity in Legal Draftsmanship” (1970-1971) 20 Drake L Rev 137.

• Maurice B Kirk, “Legal Drafting: The Ambiguity of ‘And’ and ‘Or'” (1971) 2 Texas Tech Law Review 235.

• “Some Cases on ‘And/or’” (1994) 31 Clarity 21.

• David Elliott, “The Orians, the Andians and the Andorians” (2004) 51 Clarity 10.

• Kenneth A Adams & Alan S. Kaye, “Revisiting the Ambiguity of and and or in Legal Drafting” (2006) 80 St John’s Law Review 1167.

• Bryan A Garner, “Looking for Words to Kill? Start with These” (2006) 35 Student Lawyer 12.

• Roger Shuy, “Legal Uses of And/Or…or Something” Language Log (blog) (April 17, 2008), http://languagelog.ldc.upenn.edu/nll/?p=47.

I also highly recommend Bryan Garner’s Legal Writing in Plain English: A Text with Exercises (Chicago: University of Chicago Press, 2001) for the exercises he has for rewriting sentences using “and/or” into sentences using proper English. Despite my conniption fits over “and/or,” I acknowledge it is not always obvious how to best replace “and/or” with either “and” or “or” or some other word or re-phrasing (there: I did it, three instances of “or” in a row in a sentence). But that is really the whole point of plain English in legal writing: figure out what you are trying to say and then use the most appropriate wording – don’t be lazy and simply use “and/or” when, without too much effort, you can derive better wording. I highly recommend the article by Kermit Dunahoo (above) on the complexity of meanings of “and” and “or.” Ruth Sullivan in Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 81-82 also has a good discussion on the meaning of “and” and “or.”

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Case Law Critical of “And/Or”

Criticism of “and/or” is not limited to commentary in secondary resources.

Judges have been vociferous in noting its ambiguity.

Set out below is a selected list of cases, listed from oldest to most recent, where courts have been critical of “and/or” (note: many of the cases below were noted by either Garner or Dick in their books above; other cases I have come across on my own). To me it is significant that the cases come from Canada, the United States, the United Kingdom, and Australia – the criticism is widespread.

I am somewhat mortified that the Ontario Court of Appeal in the 1985 decision below suggests that there may be a role for “and/or” if properly used (however at the same time as being critical of the term).

Of the criticisms below, my favourites are likely “bastard conjunction,” a “bastard sired by indolence,” and “the much condemned conjunctive-disjunctive crutch of sloppy thinkers.” You also can’t go wrong with “Janus-faced verbal monstrosity.”

Note: the cases that follow are by no means exhaustive.

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1909: Clergue v Vivian & Co (1909), 41 SCR 607 at 617

[Although this case was not a case of “and/or” the Court makes the point that these words, when used separately, are flexible enough to convey the intended meaning, in this situation to interpret the phrase “to myself or assigns” to really mean “to myself and assigns”]

There is no doubt of the intention of the parties; and, where sense requires it, there are many cases to shew that we may construe the word “or” into “and,” and “and” into “or,” in order to effectuate the intent of the parties.

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1932: Cochrane v Florida East Coast Ry Co, 145 So 217 at 218-19 (Fla 1932):

In the matter of the use of the alternative, conjunctive phrase ‘and/or,’ it is sufficient to say that we do not hold this to be reversible error, but we take our position with that distinguished company of lawyers who have condemned its use. It is one of those inexcusable barbarisms which was sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.

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1932: Putnam v Industrial Commission, 80 Utah 187, 14 P 2d 973 at 983 (Utah 1932):

We venture the assertion that any man who knows the meaning of the two words and the established distinctions in their use can take a modern contract or statute, bristling with this symbol, strike out every one of them and substitute the proper one of the two words, to the great clarification of the meaning of the instrument or act.

In short, we believe the symbol to be a device for the encouragement of mental laziness even in the drafting of private contracts, but against its use in pleadings and court proceedings and in legislative acts or in either of the foregoing categories.

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1933: Underhill v Alameda Elementary School District, 133 Cal App 733 at 736(1933):

It is alleged “that plaintiff and other children of tender and delicate years were taking part in such game and/or were playing in the immediate vicinity of such game” and that “larger pupils” were participating in the game. We believe these allegations are wholly insufficient. We pause to point out that it is impossible to tell whether plaintiff was a participant in the game or was playing in the immediate vicinity. This may not be of vital importance on the consideration of the general demurrer, but we deem it appropriate to call attention to the confusion brought about by the misuse of the term “and/or”.

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1935: Bell v Wayne United Gas Co, 181 SE 609 at 618 (W Va 1935), dissenting judge (on other grounds):

The involvements of the contract are accentuated by the frequent use of the baffling symbol “and/or”-a disingenuous modernistic hybrid, inept and irritating.

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1935: Employers Mut Liability Co v Tollefsen, 263 NW 376 at 377 (Wis 1935):

[in the context of an insurance policy insuring “Smith and/or ABC Company].

It is manifest that we are confronted with the task of first construing “and/or,” that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients. We have even observed the “thing” in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not.

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1938: Sproule and/or Fidelity Life Ins Co v Taffe, 294 Ill App 374, 13 N.E.2d 827 (1938):

[Note: The court found void a lease where the landlord was described as “Charles J. R. Sproule and/or the Fidelity Life Insurance Company”]

We have many times condemned in unmeasured terms the use of “and/or” as a “confusing fad,” “accuracy destroying symbol,” “pollution of the English language,” that “barbarism,” “unsightly hieroglyphic,” “verbal teratism,” and other terms of a similar character that we could think of up to this time . . . . Many courts of other jurisdictions have, in like terms, condemned the use of this symbol . . . .

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1942: In re Bell, 122 P 2d 22 at 29 (Cal 1942):

The uncertainty surrounding their conviction arises from the ambiguity of the complaint, which charged them with violating any one ‘and/or’ any other provision of the ordinance, count 1 referring to section 2 and count 2 referring to section 3. Petitioners were in effect charged with violating all the provisions of each section of the ordinance or any one provision of each section. They were found guilty ‘as charged’ and sentenced ‘on said conviction.’ It cannot therefore be determined from the face of the record whether or not they were found guilty of violating the one valid provision of section 3.

The expression ‘and/or’, which made possible a conviction couched in such general terms, has met with widespread condemnation . . . . It is true that the expression has proved convenient in contracts and other instruments where, by its intentional equivocation, it can anticipate alternative possibilities without the cumbersome itemization of each one . . . . It lends itself, however, as much to ambiguity as to brevity. Thus it cannot intelligibly be used to fix the occurrence of past events. A purported conclusion that either one or both of two events occurred is a mere restatement of the problem, not a decision as to which event actually occurred. If a person is accused of violating an unconstitutional as well as a constitutional provision of a statute and the verdict by the use of ‘and/or’ declares him guilty of violating either one or both provisions, it is an open question whether he is guilty of any punishable offense. The verdict in effect states that the accused is guilty or innocent of violating the constitutional provision.

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1942: In re Lewis, [1942] Ch 424 at 425, per Farwell J:

The expression “and/or” is unfortunate. I do not think I have met it before in a will, and I hope I shall never meet it again.

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1944: Bonitto v Fuerst Bros, [1944] AC 75 at 82 (HL) per Viscount Simon:

Para. 18 stated the alternative claim in a variety of phrases, separated from one another by the repeated use of the bastard conjunction “and/or” which has, I fear, become the commercial court’s contribution to basic English.

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1948: Gray Coach Lines Ltd v Bell Telephone Co, [1948] OWN 205

Our Courts have more than once expressed dislike of the expression “and/or” . . . .

I cannot see how, if the words ‘and/or’ are construed in this way, so as to give them both a conjunctive and disjunctive mean ing, the pleading is evasive. Pleading in the alternative is not objectionable unless it is in such form as to be embarrassing.

It remains to be determined whether in the present case the expression “and/or” is evasive and, consequently, embarrassing.

. . . .

An order will go striking out of para. 4 either of the words in the expression “and/or” at the option of the plaintiff, with leave to amend the paragraph as advised.

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1950: Looke v Parbury Henty & Co Pty Ltd, [1950] VLR 94 at 98:

“I agree that the expression `and/or’ is commonly an indication that the draftsman is not clear in his own mind about the matters with which he has to deal . . . .”

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1956: Neame v Neame’s Trs, [1956] SLT 57:

But it would be most unfortunate if a confusing expression such as `and/or’ were to become a common feature in Scottish marriage contracts or testamentary settlements (Lord Clyde at 62).
. . . .

I would venture to add that in my judgment the phrase `and/or’ is at best a loose and ambiguous term which would be better not to be used in formal legal writs affecting patrimonial interests (Lord Russell at 64).

. . . .

The expression `and/or’ is not a happy one and, if occurring in a simple gift, might give rise to a serious problem of construction (Lord Sorn at 64).

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1957: Shadden v Cowan, 213 Georgia 29, 96 SE 2d 608 at 30-31 (1957):

The petitioners bring this action for injunctive relief, alleging themselves to be ‘patrons of the Cartersville public school system and/or taxpayers of the City of Cartersville.’ The use of the equivocal term ‘and/or’ has been often criticized . . . . In the instant case, the petitioners do not allege themselves to be patrons of the Cartersville public school system or taxpayers of the City of Cartersville. They do not state in what capacity they seek equitable relief. Before they would be entitled to maintain a cause of action as taxpayers against the defendants, they must allege that they are in fact taxpayers and must allege facts to show that they are entitled to the relief sought. Likewise, to maintain an action as patrons of Cartersville’s public schools, they must positively allege that they are such patrons and as such are entitled to the relief for which they pray. The fact that an action might be maintained by taxpayers or that an action might be maintained by patrons of a public school system, provided sufficient facts are alleged to show that complainants are entitled to the relief sought, will not save the instant petition from dismissal where it fails to allege positively what in fact is the petitioners’ basis for seeking equitable relief. Where, as here, they seek to predicate their right to bring their action as members of a class, they must allege positively that they belong to such a class as would be authorized to maintain the action.

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1965: John G Stein & Co Ltd v O’Hanlon, [1965] AC 890 at 904:

The symbol ‘and/or” is not yet part of the English language.

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1976: Klecan v Schmal, 241 NW 2d 529 at 533 (Neb 1976):

With reference to the use of the phrase ‘and/or,‘ we have stated in connection with the drafting of statutes that the use of the phrase is not to be recommended as it leads to uncertainty, ambiguity, and multiplicity . . . . Nevertheless the phrase is still frequently, though perhaps not advisedly, used in the preparation of contracts, negotiable instruments, and similar documents. Where so used, the commonly accepted meaning is that ‘and/or’ means either ‘and’ or ‘or,‘ or both.

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1981: Raine v Drasin, 621 SW 2d 895 at 905 (Ky 1981):

[T]he much condemned conjunctive-disjunctive crutch of sloppy thinkers.

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1985: Higgins v Orion Insurance Co (1985), 50 OR (2d) 352 (CA):

The difficulty in ascertaining the precise coverage intended by the policy is reflected by these various interpretations. This is hardly a surprising consequence of the use of the expression “and/or”. That term has often created confusion and ambiguity and for many years has been the subject of frequent criticism. It has been condemned as “a confusing hybrid”, “a grammatical monstrosity”, “a bastard sired by indolence (he by ignorance) out of dubiety”, and “an unfortunate expression which I have not met before and which, I hope, I may never meet again” . . . . Nonetheless, the expression has enjoyed increased usage in contracts and other legal documents, and when properly used can serve as a convenient abbreviation to avoid clumsy circumlocation. A court’s duty, of course, is to interpret the term so as to best express the true intention of the parties to the transaction. The interpretation to be afforded it must in each instance depend upon the circumstances under which it was used. In the context of a dispute arising out of a policy of insurance, if the term should create an ambiguity then by the familiar rule of interpretation the ambiguity will be construed most favourably to the insured.

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1989: California Trout Inc v State Water Resources Bd, 255 Cal Rpter 184 at 194 (note 8):

“‘And/or’ is taboo” in legislative drafting.

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1998: Moage Limited, [1998] FCA 296, (1998) 153 ALR 711

In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding. In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way . . . .

The loosely framed drafting of paragraph 215A simply sweeps these problems under the carpet by alleging that Mallesons was aware of facts by Holland and/or Stumbles and/or Humphry and/or Halstead and/or Warnick. But there is a real question whether the knowledge of, say, Holland could affect the question whether Halstead was in breach of fiduciary duty or negligent.

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1998: Sandman v Farmers Ins Exch, 969 P 2d 277 at 281 (Mont 1998):

Aside from observing that the use of this much-maligned and overused conjunctive-disjunctive reflects poor draftsmanship and generally should be avoided, we are, nonetheless, unpersuaded that the use of “and” and “or” with the slash is any more correct or any less confusing than without the slash. According to the legal commentators, when used together with “and,” the word “or” usually includes “and” and the “and/or” phrase means “either or both of.” Inclusion of the “/” would not have corrected any error, ambiguity or confusion already inherent in the use of the “and” “or” conjunctive-disjunctive.

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2007: Philip Services Corp v City of Seattle, 2007 U.S. Dist. Lexis 14906 at para 21 (2 March 2007, SD Tex)

The potentially confusing uses of “and” and “or” has long been noted [by] students of legal writing.

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2010: St Clair v Timtalla Pty Ltd Anor (No 2), [2010] QSC 480 at para 11:

The pleading is replete with the device “and/or” which was accurately described by Viscount Simon . . . as the “Bastard conjunction” which was the “commercial courts contribution to basic English”. The term has generally been regarded as unacceptable in commercial documents and more so in pleadings.

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I welcome comments or criticisms. I also welcome comments and criticisms.

But I certainly don’t welcome comments and/or criticisms.