This article aims to briefly examine the use of the symbol “and/or” in a contract or a statement of claim drafting and why this symbol should be avoided. It is said that by using the symbol, the draftsman is not clear as to the extent of its application to the subject they refer to.
The voice from the bench clearly says “don’t use it”
In common law jurisdictions, it was as early as 1855 that the courts expressed their disapproval of the use of “and/or” in drafting a contract. Alderson B in Cuthbert v Cumming (1855) 24 LJ Ex at 199 examined a contract that used and/or in its content. The contract on the face of the charter party was, that the parties were to “load a full and complete cargo of sugar, molasses, and/or other lawful produce” so that according to the contract, the parties were either to load a full and complete cargo of sugar and molasses, and other lawful produce, or a full cargo sugar and molasses, or a full cargo of other lawful produce, leaving it open in every way by reason of the words “and” and “or” being introduced into the charter-party.
Examples of how the court interpreted “and/or” in a Deed
It was in Neame v Neame’s Trs [1956] SLT 57, that the majority of the court read “and/or” in a deed, as meaning nothing more than “and”. The Lord President, Lord Clyde, said (at 62), “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 Russell added that “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 Sorn joined the chorus of disapproval when he said, “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”. He further added, “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.
Why do the courts disapprove of using “and/or” in drafting a Contract or a Statement of Claim
The disapproval stems from the fact that in the court’s interpretation of “and/or”, the symbol endangers accuracy for the sake of brevity. Fowler J in Employers Mutual Liability Insurance Co of Wisconsin v Tollefsen 263 NW 376 at 377 said, “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 someone 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 a 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”.
What does Garner’s Modern English Usage say about the use of “and/or”?
Bryan Garner is of the view that “a legal and business expression dating from the mid-19th century, and/or has been vilified for most of its life – and rightly so. To avoid ambiguity, don’t use it”.
Queensland Supreme Court opines on “and/or” in its judgment
His Honour Justice Martin in PFJV Pty Limited v Bartter Enterprises Pty Limited [2022] QSC 110 in relation to the ambiguity that the use of “and/or” caused in the pleading material said at [16], “that vagueness commences with the use of the term “probability and/or possibility”. I expressed my disdain for the “and/or” conjunction in St Clair v Timtalla Pty Ltd (No 2) [2010] QSC at 480. His Honour further Quoting Barry J in Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94 at 98, whereas the latter said, ‘I agree that 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 (cf Piesse, Elements of Drafting, pp. 52-57).’
The take-home message
Whether you need a contract or intend to prepare a statement of claim, it is imperative that you seek professional legal advice to ensure that your interests are protected. An ill-worded contract or statement of claim can be detrimental, not to mention a vague contract or pleading can be struck out for failing to precisely lay a foundation of the proceeding.
For advice or assistance with all contract and commercial matters, contact the Commercial Law Team at Aylward Game Solicitors today on 1800 217 217
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Article Source: Statement of Claim
