Notice - no climbing and writing on the walls

 

 

Short answer: No one ever has to write “and/or”. There is always another, better way to say what you mean. Consider the alternatives in this article.

And/or meant one, the other or both

I think this is the most common meaning of and/or. For example, here is a definition in a supply contract:

Contract: the contract between Customer and Supplier for the supply of Goods and/or Services in accordance with these Terms and Conditions and the Purchase Order documentation.

These were the customer’s standard terms, designed to be used in all its supply contracts. Its purchase order would identify the deliverables, without attempting to classify them as goods or services. (“Goods” meant any goods or services specified in the purchase order, and “Services” were defined in a similar way.) So, in this definition, “Goods and/or Services” meant “Goods, Services, or both”.

Actually, the context was enough to make this meaning obvious. If a contract for goods is a Contract, and a contract for services is a Contract, how can a contract for both goods and services be anything but a Contract? The definition could safely have referred to a contract for the supply of Goods or Services. Even if the language might have another meaning, the context made it impossible to mistake.

And/or meant one or more

For 3 or more items, one or both becomes one or more. For example, an insurance policy said:

no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.

It was probably obvious to the insurer that the cover was withdrawn when the skier did one or more of the following: ignored advice, went off-piste, broke a rule. But the policyholder argued that he was covered for skiing unless he did all three at once. The insurer’s meaning, he (rightly) said, would have been achieved by or. The insurer won – but it had to defend the claim all the way to trial.

Another way to express the conditions might have been:

no cover during skiing that fits any of these descriptions:

  • it offends laws or rules.
  • it is away from prepared and marked in-bound territories.
  • the local ski school or local authoritative body has advised against it.

 

So, should we always spell it out in full?

When you’re drafting a contract, it’s a good discipline to spell out in full what you mean by and/or.

But, where there is only one possible answer, you do not need and/or to express one or more of. Both and and or can convey this meaning:Notice: no climbing and writing on the walls

  • And. Consider this notice, from the walls of the Colosseum in Rome: “no climbing and writing on the walls”. Could anyone imagine they are allowed to climb, so long as they don’t write?
  • Or. A more idiomatic translation might have said “no climbing or writing on the walls”. Again, how could anyone suppose they may write on the walls, provided they also climb?

 

Isn’t and/or a convenient shorthand?

If and/or always meant “one, the other, or both” then we could substitute and/or for “or both”, though it’s barely any shorter. But and/or can mean other things.

What if you can’t rely on the context?

If the relation between the items in your list isn’t obvious, or you can’t rely on the reader to see it your way, then and/or does not fix the problem, because it can have more than one meaning.

And/or meant or

Sometimes, and/or is used to mean or. For example, in this contract term, the Court of Appeal decided that and/or could not mean anything else:

… the Director Vendors shall remain as Directors of the Company in a Non-Executive capacity unless otherwise agreed and/or requested by the Purchaser …

If the vendors had agreed to step down from their directorships, the purchaser wouldn’t need to request it. And as soon as the purchaser requested it, the clause was triggered, whether or not the vendors then agreed.

And/or meant and

Here’s the title of guidance given to judges in 2016:

Transfer of proceedings under Article 15 of Brussels IIa and Articles 8 and/or 9 of the 1996 Hague Convention

You don’t need to read the guidance to know if it dealt with transfers under:

  1. Article 15 of “Brussels IIa” (that is, Brussels Regulation 2201 of 2003).
  2. Article 8 of the 1996 Hague Convention.
  3. Article 9 of the 1996 Hague Convention.
  4. All of the above.

A judge might transfer proceedings under just one of these articles. But obviously the guidance should tell the judge about all of them (as it did). So the “or” in this title was at best unnecessary, at worst misleading.

And/or was ambiguous: good for drafter?

If the context doesn’t make it obvious, there may be more than one way to interpret and/or. For example, one clause of the supply contract gave the customer the right “to reject the Goods” and demand re-performance of “the Services” in various cases, including this:
If the Supplier has delivered Goods and/or performed Services that do not comply with the warranties set out in clauses …
I think the customer probably wanted the right to reject non-compliant goods and demand re-performance of non-compliant services. But is that what the contract says? Arguably, this clause creates a right to reject goods if the supplier performs non-compliant services, and to demand re-performance of services if the suppler delivers non-compliant goods. It depends whether “the Goods” and “the Services” mean the Goods and Services as defined at the start of the contract, or only those that are non-compliant.

A customer that can insist on use of its standard terms may feel that this is the supplier’s problem, and that and/or in this clause has only added to its rights, not reduced them.

And/or was ambiguous: bad for drafter?

In this clause, I am not sure that and/or achieved what the drafter wanted:

The Supplier shall have in place policies, procedures and technical controls governing … (c) The secure retention and destruction of records containing personal information retained within their manual and/or electronic systems.

I think the customer wanted its supplier to have a retention procedure in place for all personal information held in each kind of system. But is that what it agreed? Literally, two meanings are possible:

  • Pro-supplier: a supplier can comply by having a retention policy in place for its manual system, its electronic one, or both.
  • Pro-customer: A supplier with manual and electronic systems must have a policy in place for both systems; the or alternative is for a supplier with just one system.

If the clause had specified “personal information kept in a manual or electronic system”, or “personal information in the Supplier’s manual and electronic systems”, would it have been clearer?

And another clause of the supply contract allowed the customer to terminate the contract instantly in various cases, including this one:
If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date …

I think the customer wanted the right to terminate as soon as any goods or services were late. But is that what the contract said? A supplier might argue that this termination right isn’t triggered until it is late in supplying goods (in a contract for goods), services (in a contract for services, or both goods and services (in a contract for both goods and services). The argument might not make sense in every context, but the language allows it.

The subtext of and/or

In the standard supply terms quoted here, the drafting makes every effort to protect the customer and none to appear reasonable (or, I would add, understandable) to the supplier. A supplier won’t need to analyse them in detail to reallise that.
An extreme example of this style of drafting, in a different context, was condemned in court as “unacceptable” and “unduly and unnecessarily convoluted and prolix”.
Does the powerful customer care? Does it want its suppliers to feel valued and treated fairly, or vulnerable to exploitation?

(If the suppliers never read the terms, it probably doesn’t matter.)

And/or meant “and maybe (if it matters)”

Here is a tiny extract from the Court of Appeal’s judgment about a claim for damage to cargo in 2003:

The cargo owners, who are described in the claim form as the owners and/or other persons interested in the cargo lately laden on the vessel “Jutha Rajpruek”, shipped various general cargoes on board that vessel.

I suppose every claimant had an interest in the cargo, even if not as an owner. In that case, it would have been just as accurate to describe them as “persons interested in the cargo”, deleting “the owners and/or other”. So, the claim was a little wordier than it needed to be, demanding a little more effort from the judge. Good advocacy should make it as easy as possible for the judge to agree.

Worse, by adding “or”, the writer introduced the possibility that none of the claimants owned any cargo. Did that matter? If so, shouldn’t the writer have said whether the claimants included an owner? If not, why mention ownership? The sub-text of this description is “If it matters (and I’m not sure it does), one or more of the claimants might have been an owner”. Good advocacy should inspire confidence that the desired result will be justified by the facts and the law. But this “and/or” suggests that the writer does not know the facts or what is necessary to prove the claim, when the reality is more likely to be that the writer has acquired a bad writing habit.

More subtext: and/or is a sign of poor drafting

Because it creates complexity and fails to resolve ambiguity, and/or is a poor drafting tool. In practice, it is a common feature of poor drafting. So another subtext of and/or is “I am bad at drafting”. Don’t take it from me; here is Lord Justice Mummery, saying what no lawyer ever wants to hear about their writing:

That this document is not the product of skilful drafting is also evidenced by the presence of the expression “and/or.” Its use in this clause is unnecessary and confusing … I would add that the expression “and/or” in any legal document is in any case open to numerous more fundamental objections of inaccuracy, obscurity, uncertainty or even as being just plain meaningless …

 

Action

  • Have you seen a necessary or useful and/or? Comment on this blog to share it with the rest of us.
  • Delete and/or, if the meaning is obvious from context.
  • Find another way to express and/or, if your reader might not see it your way.
  • Read other blog posts on and/or.
  • Follow the blog.
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