And/or: Difference between revisions
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Bradford44 (talk | contribs) →Use of and/or in the legal profession: reworded reference to Wisconsin opinion and moved citation to footnote; added citation needed tags where appropriate, and added Fla. opinion |
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== Use of and/or in the legal profession == |
== Use of and/or in the legal profession == |
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The phrase has come under considerable criticism in the legal profession in both American and British courts.{{cite}} Judges have called it a "freakish fad," an "accuracy-destroying symbol," and "meaningless."{{citation needed|date=January 2012}} In |
The phrase has come under considerable criticism in the legal profession in both American and British courts.{{cite}} Judges have called it a "freakish fad," an "accuracy-destroying symbol," and "meaningless."{{citation needed|date=January 2012}} In a [[Wisconsin Supreme Court]] opinion from 1935, Justice Fowler referred to it as "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 know what he did mean."<ref>In the case of Employers Mutual Liability Insurance Co. v. Tollefson, 263 N.W. 376 at 377 (1935).</ref> The [[Kentucky Supreme Court]] has said it was a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."{{citation needed|date=March 2012}} Finally, the [[Florida Supreme Court]] has held that use of and/or results in a nullity, stating |
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<blockquote>. . . we take our position with that distinguished company of lawyers who have condemned its use. It is one of those inexcusably barbarisms which were sired by indolence and damned 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.<ref>Cochrane v. Fla. E. Coast Rwy. Co., 145 So. 217 (1932). ''See also'', Henry P. Trawick, Jr., Florida Practice & Procedure § 6:7 (2011-2012).</ref></blockquote> |
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It is particularly damaging in legal writing, in addition to being generally sloppy writing, because a bad-faith reader of a contract can pick whichever suits him, the 'and' or the 'or.'<ref>Garner, Bryan A. "Looking for words to kill? Start with these." Student Lawyer 35.1 (2006): 12-14. [[American Bar Association]].</ref> Courts called on to interpret it have applied a wide variety of standards, with little agreement.<ref>{{cite web | url = http://languagelog.ldc.upenn.edu/nll/?p=47 | author = Roger Shuy | title = Legal uses of and/or…or something | date = April 17, 2008 | work = [[Language Log]]}} Cited works include David Mellinkoff, ''The Language of the Law'' (Little Brown 1963) and Larry Solan, ''The Language of Judges'' (Chicago 1993).</ref> |
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== Use of and/or in banking == |
== Use of and/or in banking == |
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Revision as of 14:17, 16 March 2012
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And/or is a phrase used to indicate that one or more of the stated cases may occur. For example, the sentence "He will eat cake, pie, and/or brownies" indicates that although the person may eat any of the three listed desserts, the choices are not exclusive; the person may eat one, two, or all three of the choices.
Everyday use and misuse
And/or is commonly used in official, legal and business documents, but its use outside of these arenas is strongly criticized.[1] Fowler's English Usage describes it as "ugly",[1] Strunk and White says that it "damages a sentence and often leads to confusion or ambiguity",[2] and the Chicago Manual of Style calls it "Janus-faced".[3]
Two alternatives have been proposed for a phrase such as "x and/or y". The first is to replace it with "x or y or both".[1][2] The second is to simply use "x or y".[3] Some grammarians[who?] have pointed out that the word or logically and grammatically encompasses the same meaning. That is, the sentence "He will eat cake, pie, or brownies" still permits the person to eat one, two, or all three of the choices. There is an ongoing debate about whether the English word or (without either) is sometimes used in the sense of an exclusive or.[citation needed]
The word either can be used to convey mutual exclusivity. "When using either as a conjunction, [it can be applied] to more than two elements in a series."[4] Thus, "He will eat either cake, pie, or brownies" appropriately indicates that the choices are mutually exclusive. If the function of or is clear from the context, it is not necessary to use either as a conjunction:
Person 1: You may select one item for dessert.
Person 2: What are my choices?
Person 1: You may eat cake, pie, or brownies.
Use of and/or in the legal profession
The phrase has come under considerable criticism in the legal profession in both American and British courts. {{citation}}: Empty citation (help) Judges have called it a "freakish fad," an "accuracy-destroying symbol," and "meaningless."[citation needed] In a Wisconsin Supreme Court opinion from 1935, Justice Fowler referred to it as "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 know what he did mean."[5] The Kentucky Supreme Court has said it was a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."[citation needed] Finally, the Florida Supreme Court has held that use of and/or results in a nullity, stating
. . . we take our position with that distinguished company of lawyers who have condemned its use. It is one of those inexcusably barbarisms which were sired by indolence and damned 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.[6]
It is particularly damaging in legal writing, in addition to being generally sloppy writing, because a bad-faith reader of a contract can pick whichever suits him, the 'and' or the 'or.'[7] Courts called on to interpret it have applied a wide variety of standards, with little agreement.[8]
Use of and/or in banking
Use of "and/or" in reference to the payee on a cheque has been contemplated in both the United States and Canada. In the United States, the Uniform Commercial Code (UCC §3-110 - Identification of Person to Whom Instrument is Payable) states that
If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.
The last part reading If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively contemplates use of and/or, and how an item with those words written is to be accepted (use of or prevails).[improper synthesis?]
In Canada, this is not as clearly defined, and not contained within any Canadian Payments Association Rules. It is generally accepted that the most conservative approach would be to force double endorsement (all named payees) to mitigate the possibility of one of the named payees' contesting the encashment of the cheque.[citation needed]
See also
Notes
- ^ a b c Fowler, H.W. (1982). A dictionary of modern English usage (2nd ed., rev. by Sir Ernest Gowers. ed.). Oxford, Eng.: Clarendon Press. ISBN 0198691157.
- ^ a b Strunk, Jr., William; White, E. B. (1982). Elements of style (3rd ed.). New York: Macmillan. ISBN 0024181900.
- ^ a b "5.220". Good usage versus common usage. The Chicago Manual of Style Online (16th ed.). University of Chicago Press.
- ^ The American Heritage Book of English Usage. "Grammar: Traditional Rules, Word Order, Agreement, and Case" bartleby.com URL accessed on August 31, 2006.
- ^ In the case of Employers Mutual Liability Insurance Co. v. Tollefson, 263 N.W. 376 at 377 (1935).
- ^ Cochrane v. Fla. E. Coast Rwy. Co., 145 So. 217 (1932). See also, Henry P. Trawick, Jr., Florida Practice & Procedure § 6:7 (2011-2012).
- ^ Garner, Bryan A. "Looking for words to kill? Start with these." Student Lawyer 35.1 (2006): 12-14. American Bar Association.
- ^ Roger Shuy (April 17, 2008). "Legal uses of and/or…or something". Language Log. Cited works include David Mellinkoff, The Language of the Law (Little Brown 1963) and Larry Solan, The Language of Judges (Chicago 1993).