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 often means 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 (the “Goods” and the “Services”), without classifying them as goods or services. 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 two meanings were possible, the context made it impossible to mistake.

 

And/or can mean one or more of

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It was probably obvious to the insurer that the cover was withdrawn when the skier did any of the following: ignored advice, went off-piste, broke a rule. Doing a second or third of them would not be a reason to restore cover. 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 one or more 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.

In some contexts, and or or can convey the same 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 or both / one or more of then it would be a (slightly) shorter substitute for or both / or more of. But and/or can mean other things.

 

And/or can mean 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 can mean 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

Obviously, the guidance should tell the judges about all of these transfers (as it did), even though each transfer might involve only one Article. So the “or” in this title was at best unnecessary, at worst misleading.

 

And/or can be 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 customer’s standard 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 …
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.
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 can be ambiguous: bad for drafter?

In this clause from the customer’s standard supply contract, 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.

The customer probably wanted its supplier to have a retention procedure 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 for its manual system, its electronic one, or both.
  • Pro-customer: A supplier with manual and electronic systems must have a policy for both systems; the or alternative is for a supplier with just one system.

If the clause had specified “personal information 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 …

The customer probably 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 understandable) to the supplier. A supplier won’t need to analyse them in detail to realise 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, maybe it doesn’t matter.)

 

And/or can mean 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.

Was it necessary to the claim, that at least one claimant should be an owner? If so, the or in and/or undermined the claim, introducing the possibility that none of the claimants owned any cargo. If not, then “the owners and/or other” was redundant, making the claim 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.

Good advocacy should also inspire confidence that the desired result will be justified by the facts and the law. But this and/or conveys the message: “If it matters (and I’m not sure it does), one or more of the claimants might have been an owner”. It 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.

 

So, should we always spell it out in full?

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

In some contexts, your meaning may already be obvious. If it is not, And/or adds complexity without resolving ambiguity.

 

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

For all these reasons, and/or is a poor drafting tool and a common feature of poor drafting. So another subtext of and/or is “I am bad at drafting”. 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 this blog.
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