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Clear and/or Unclear

On the surface, and/or seems like a helpful but mostly harmless little phrase — a little ugly, perhaps, but still useful for those times when you want to be extra clear about what all the options are. Most people associate the phrase with legal writing, but it turns out that a surprising number of lawyers and judges hate it, claiming that it's actually unclear and thus impossible to interpret.

According to Merriam-Webster's Dictionary of English Usage, the construction arose in the 1800s in shipping contracts and became a matter of litigation soon after. Three judges were involved in the first case regarding and/or, and they all came to different conclusions. Later cases ended similarly, mired in confusion over this impenetrable little pair of conjunctions. So what gives? Isn't and/or supposed to increase clarity, not hinder it?

Let's start by looking at the logic of and and or. And is usually used as a logical conjunction, meaning that the statement containing the conjunction is true only if both of the things joined by it are true. For example, if I say I like pie and cake, then the sentence is true only if it's true that I like pie and it's true that I like cake. (I do, so it is.) Or, on the other hand, is a logical disjunction, and this is where it starts to get complicated, because there are two types of disjunctions — inclusive and exclusive.

A statement with an inclusive disjunction is true if one or both of the things joined by it are true, while an exclusive disjunction is true only if only one of the things joined by it is true. If I said You can have pie or cake, the usual implication is that you can have one or the other but not both — that is, it excludes one or the other — but this isn't always so; maybe there's enough that you can have seconds. You can make or explicitly exclusive by pairing it with eitherYou can have either pie or cake.

In other contexts, or tends to be inclusive. If I say If Will or Susan calls, tell them I'm not here, I'd expect you to tell either one of them that I'm not here even if both of them call me. But while we have either–or to make exclusive disjunctions clear, there isn't a good way to make or explicitly inclusive besides wordy constructions like A, B, or A and B or A or B or both. Enter and/or, which seems to be the perfect way to make it clear which kind of or you mean.

Except that, as noted above, some lawyers and judges hate it and say that they don't know how to interpret it. Scott J. Burnham writes, "A number of commercial cases have arisen in which the agreement specified that one party would deliver 'A, B, and/or C' or 'A and/or B and/or C.' The possible combinations are so boggling that it's difficult to tell what was intended." Actually, it's quite easy to list the possible combinations:

  • A
  • B
  • C
  • A and B
  • A and C
  • B and C
  • A, B, and C

As for what the author intended, well, I would assume they intended what they said: one party would deliver one of those options.

Legal writing expert and usage commentator Bryan Garner says that "or includes and" and argues that "the real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable." But if or includes and, then "A and/or B and/or C" is exactly equivalent to "A, B, or C." Couldn't a bad-faith reader just as easily pick whatever reading of "A, B, or C" seemed favorable? After all, it seems that the author is presenting them all as acceptable choices. If it's all the same to the author, why not pick the one you like best?

Yet Garner also insists that "if a sign says 'No food or drink allowed,' nobody would argue that it's OK to have both." (Note that this is one case in which or does not include and.) What's to stop a bad-faith reader from doing so here? And strangely, in his Modern American Usage, Garner says that you should use or instead of and/or to avoid ambiguity. But it's or that's ambiguous, allowing either an inclusive or exclusive reading according to context.

I think the real problem with and/or is that it's not always clear if the author really meant to include all those options or if they were just using and/or out of habit. Burnham notes that "a provision limiting liability 'in the event of destruction in the Atlantic and/or Pacific' states an impossibility when read with the conjunctive and," and he suggests rewriting for clarity. In this case it's obvious that the author didn't really mean what they wrote — a ship can't be destroyed in the Atlantic and Pacific.

So while there may be nothing intrinsically wrong with and/or, it may be a sign of sloppy thinking. If you do use it, be sure that you actually mean what you're saying, and also be aware that many editors find it ugly and will replace it with simple or. But more importantly, if you're writing a legal document, keep in mind that many judges hate and/or and may not interpret it the way you intended. Whatever you may gain in clarity is probably lost with the ill will you may engender. You're better off just sticking with or.

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Jonathon Owen is a copy editor and book designer with a master's degree in linguistics from Brigham Young University. His thesis explores the role of copyediting in regulating English usage, and he holds the paradoxical view that it's possible to be a prescriptivist and descriptivist simultaneously. He writes about usage, editing, and linguistics at arrantpedantry.com, and he also writes a column on grammar for Copyediting newsletter. In his free time he likes to play Scrabble and design word-nerdy t-shirts. You can follow him on Twitter at @ArrantPedantry Click here to read more articles by Jonathon Owen.

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Comments from our users:

Wednesday January 7th 2015, 2:05 AM
Comment by: Philippe D. (Sydney Australia)
Lawyers dislike "and/or" because sometimes it may be easy to deliberately—albeit plausibly—€”misunderstand the meaning that is intended to be conveyed, and it is said that "and/or" contributes to that possibility. This is often more theoretical than real because of context.

Returning to your pie-and-cake example, if I ask a waiter what are my dessert options, to which he replies pie and cake, most people would accord the same meaning to his reply as if he said pie or cake: one or the other. But greedy people may claim that they understood that they were entitled to 2 desserts: pie and cake. The reason why most people equate the waiter's reply of pie-or-cake with pie-and-cake is that usually one has only a single dessert in a restaurant. The restaurant provides the context. The legal problem arises when a transaction is rare or unique—€”then there is no obvious context. Logic is all fine and well, but context is crucial to deriving meaning. And a lawyer's task when writing is to prevent deliberate but plausible misunderstanding when context is unclear.

But, having said this, and as an experienced lawyer, I have concluded that lawyers who tenaciously reject "and/or" do not so much have an interest in word usage and expression, but instead have deep-rooted psychological problems like all fanatics! Life usually has a place for everything, and "and/or" is no exception.

Philippe Doyle Gray
8 Wentworth Chambers



LinkedIn au.linkedin.com/in/philippedoylegray/
Wednesday January 7th 2015, 2:10 AM
Comment by: Philippe D. (Sydney Australia)
I regret to have discovered that I am unable to post a comment using the em-dash punctuation mark. I will mis-use the hyphen:

"...easy to deliberately - albeit plausibly - misunderstand..."

How ironic.

Philippe Doyle Gray

[Your em-dashes have been fixed. In the future, you can use — in your comment to create an em-dash. —Ed.]
Wednesday January 7th 2015, 5:05 PM
Comment by: Saul G. (Winthrop, MA)
Would the legal community dislike, or judges be confused by, the notion that Mr. Doyle Gray is a lawyer and/or a barrister? Am I a failure as a member of the bar because I never requested "both" when presented with the quandary of choosing between "cake or pie"? Or have I misused the irony? saulawyer (Winthrop, MA)
Thursday January 8th 2015, 8:12 AM
Comment by: Ted G. (Fairfax, VA)
Context is not material; every sentence must have a singular meaning. It may and often does require considerably more effort (and words) but replacing "and/or" with a deeper perspective is more satisfying - if you are a true wordsmith.

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