Legal Language
Legal documents, often dense and complex, rely heavily on the specific language used to convey meaning, intent, and obligations. One small word like "and" can significantly alter the interpretation of a clause, shifting an intent from an inclusive to an exclusive, or changing the meaning of the document entirely. Like many other prescriptive aspects of legal language, the conjunctive "and," typically intended as a connector between two or more logical arguments, issues, instances or items, can be viewed or interpreted in different ways depending upon the circumstances. In one context, it can be a straightforward conjunctive that is a simple connector. In another context, it can be an integrative element that qualifies or changes the intent of a preceding or subsequent clause. In yet another context, it is an inclusive adjective, meaning "all" or "entirely necessary." While the term is ubiquitous in most contracts, not every state adheres to the same interpretation, and only some sets of model rules prescribe clarity in expression.
In the 1985 case of Schott v. Lovelace (159 CAL. Rptr. 179), decided by the California Court of Appeals, a dispute arose from a divorce where a court had found that an agreement not to sell a certain family business until the youngest child turned 18 required the spouses to sell their interests in the company within four and one-half years, rather than later as argued by the majority. In its conclusion, the court noted that "and" was used in two different meanings in the business agreement: to connect the number of childsupport payments (15) and the date they were to expire (when the youngest child turns 18), and also to limit the distribution of assets among the parties . While the court opined that the first instance was clearly conjunctive and would have been clear in the absence of any other matter (145), it held that the second instance was used to separate or limit each side’s entitlement to the family business and was part of a larger, express agreement. Therefore, "the evidence does not support the contrary conclusion that the parties had used the word ‘and’ in the conjunctive sense, requiring the husband to sell his interest when the eldest child reached age 18 and his ex-wife to sell hers when the youngest child reached age 18." Id.
In the majority of cases where the word "and" has created controversy, however, the party protesting against the use of the word "and" as a conjunctive has prevailed. In Louisiana and judicial interpretations of phrases combining "and" in the conjunctive and the disjunctive ("or") seem widely accepted (Thompson v. Morgan, 35 So. 289 (La. 1903), Russell Land Co. v. Brown & Williamson Tobacco, 627 So. 2d 196 (La. App. 1993), Geyman v. Geyman, 387 So. 2d 1336 (La. 1980), and Dore v. Police Jury (1954)). Similarly, Connecticut evolution through multiple cases has set the standard and provided the test for contractual interpretation in that state. On the federal level, in United States v. Kardonsky (30 F. Supp. 453 (W. Dist. Pa., 1939)), a court held that the use of "and" in the conjunctive is to be literally construed as joining two elements unless statute or legislative history requires otherwise, citing similar provisions in Gustafson v. Alloyd Co. (513 U.S. 561 (1995) (providing similarly that the use of "and" in the conjunctive "presumptively means both").
The Conjunction “And”
The word "and" is frequently used in legal documents like contracts or corporate documents to indicate a list of items that are to be grouped together. For example, when requesting documents the request may ask that all records of a specific type, created between specific dates, be provided to us. For tax purposes, the word "and" might modify "taxes" as follows: "All federal, state, county, city and other taxes…". When signing corporate documents, the statement may read "All of the undersigned covenants and represents and warrants and agrees:".
Care must be taken because the definition of the word "and" may apply to all of the previous words or it may not. For example, presuming the word "and" means that all prior listed items are to apply is not always correct. If a request for documents asks for "…all documents regarding the sale of Widget Co., Inc. and changes in corporate control…" and the person you are asking has only been employed there for a few months and does not know what the documents were, you might receive millions of documents from the midst of history that are completely irrelevant to the matter. If the intent of the request was to only receive those documents that identify those that sold the company and those that altered the control of the company, the words "and" could be interpreted as meaning "or" when a defining word is omitted. Thus, it is important to remember not to assume that the word "and" means "and" as you know it, but rather to determine if the document implies that the word "and" should mean "or".
Another example that we use is the "Board" consisting of "…the Board of Directors and the members of the (Committees)…". Why does the use of "and" in this case not bind any directors or committee members that have resigned or otherwise left? Does the word "and" not give the reader the impression that as long as someone is a member of the "Board" they are still part of the "Board"? This appears to be an issue that remains open to legal discussion as I have not found precedent in the courts on the issue.
“And” is Not “Or”
Parties to a contract may not fully appreciate the legal effect of their use of "and" and "or" in a contractual instrument. "And" and "or" are not synonymous nor interchangeable. Parties attempting to create alternative and cumulative obligations must keep in mind the rules of interpretation which apply to them. The interpretation of "and" and "or" is a question of law to be determined by the courts. Shand Street I Pty Ltd v Pilau (2010) 241 CLR 1 at [38]. The question is whether the law requires the construction which the drafter of the agreement intended, or some other construction of wider or lesser scope.
The presumption is that the word "or" when it appears in a contract is to be read as "and/or." In Petersville Pty Ltd v East End Investments Pty Ltd [2008] NSWSC 143, the Supreme Court of New South Wales said: "A requirement for the latter construction is a very different matter from the requirement for the former [construction]: it would have been easy to add ‘and/or’ where that was the intended meaning."
In Murray Goulburn Co-operative Co Ltd v Fernyhough (No 2) (2011) 36 VR 235 it was held by the Court of Appeal of Victoria that the word "and" in a deed should be construed as "or." Further, there is no rule of construction to the effect that a contract using "and" can never be read so that this word is treated as a disjunctive.
In Dardaneli v Trani [2006] NSWCA 305, the interpretation of agreements described as an "agreement for sale and purchase" and an "agreement for sale" was considered. It was said: "The words ‘and’, when used disjunctively, connote an ‘or’. In my opinion, what was proposed is an amalgam of an agreement for sale and purchase and an agreement for purchase. Whatever the requirements of the latter, the party who submits to an agreement for sale and purchase cannot simultaneously be said to submit to an agreement for purchase only."
In Cuncar v Raynor [2013] NSWCA 206, the Court of Appeal of New South Wales said: "The word ‘and’ in the second subclause means ‘and/or’, unless the context indicates otherwise." The word "and" is not a word of art and it is enough if the context shows that it is not used unqualifiedly or is not intended to bear its normal, conjunctive meaning.
The use of "and" in a contract can create an obligation on one or more parties to act in a cumulative way. The word "or" in a contract can create an obligation on one or more parties to act in an alternative way. Words in a contract which are properly read in the conjunctive are not to be read in a disjunctive way unless the language of the contract permits it. The usual meaning of the word "and" is to be taken as mandatory, not permissive, unless the context makes it clear that it should not bear its natural meaning.
Examples Illustrating “And”
The importance of this simple three-letter word is evident in the following real-world cases. They illustrate how, in the absence of a precise definition, the interpretation of "and" can have a significant impact on legal outcomes.
In Nowogrocki v. United States, the term "and" appeared twice in the context of tax law. Nowogrocki had filed federal income tax returns for the years 1963 and 1964 but did not pay the tax due for those years, despite demands to do so. He was convicted under a federal statute that made it a crime "willfully to fail to pay any tax imposed by this title, which was due and owing." The court interpreted the statute’s phrase as meaning that both tax and payment were due—"tax due and owing." Well after the statute of limitations period had expired for the years 1963 and 1964, the IRS assessed deficiencies for the years 1974 and 1975 and began collection procedures. Again, Nowogrocki failed to pay. This time, the court interpreted the phrase as meaning that only one of the two—tax, or payment—was due—"tax or payment due." Since the second set of assessments occurred years after the statute of limitations had expired for the first set, the government could not collect the tax for the 1963 and 1964 returns.
In a much earlier case, State v. Herr, the Supreme Court of Pennsylvania ruled that "the conjunction ‘and , ‘ where used to connect words or clauses in a statute, is to be construed as ‘or’ unless expressly directed otherwise by the context." Though "and" is sometimes construed as "or," Herr established the common presumption that "and" connects terms and conditions, whereas "or" divides them. To interpret the former as the latter would have resulted in a windfall to Herr, the defendant in that drug possession case, "because if he sold only one of the drugs, he would not come within the statute."
In another drug possession case, State v. Merryman, the defendant’s indictment for possession of cocaine and marijuana was held invalid. Each count alleged possession of two substances. Therefore, if two substances did not exist, i.e., possession of each, even in different amounts, was not proved, the prosecution had failed. The defendant was indicted for possession of either cocaine or marijuana (remember the Herr case) not "and" (a direct hit to the prosecution). The New Jersey court also inferred that when the legislature has clearly expressed an intent to make any combination of the illegal substances a separate offense, it has done so. The court distinguished between carrying, possessing and distributing illegal substances.
Or, considered disjunctive in the normal sense, connotes alternative, and does not ordinarily combine them together.
Drafting Guidelines: How to Use “And”
The purpose of this discussion is not to argue the merits of a specific decision, but to consider the underlying legal principles and provide drafting tips on how best to use the word "and."
When preparing a contract, particularly a release or other waiver of rights, give special attention to the word "and." The compactness of the word, while extremely useful in everyday life, may cause confusion and difficulty in its interpretation in a legal context.
For example, in a case, the court analyzed a provision in a release that encompassed waiving "all claims, …demand[s], cause of action, …debt, obligation, agreement, covenant, contract and liability of every kind naked and in law and equity…." The court determined the list of claims was written in the conjunctive and should be read as such. As a result, the release covered all of the items in the list.
In contrast, another court considered the provision in a release that waived "any and all claims, demands, cause of action, debts, obligations, agreements, covenants, contracts, and liabilities of every kind naked and in law or equity…." The court determined by virtue of the inclusion of the term "any," the items in the list were considered to be in the disjunctive, meaning only one of them need apply.
To avoid the issue of ambiguity, consider whether clarification can be effected by adding the term "any" before the items listed. This will eliminate the question of whether the term is in the conjunctive or disjunctive. Make this modification only when appropriate so as to not inadvertently change the effect of the language from its original intent.
Another option is to insert the term "and, or" so as to avoid the conjunctive/disjunctive conflict. For example, "any and all claims, demands, cause of action, debts, obligations, agreements, covenants, contracts, and/or liabilities of every kind naked and in law and equity." It has been said this is equivalent to saying "any or all." For an example of this, see Rock-Tenn Converting Co. v. Reichhold Chem., Inc., 238 F.3d 592. Again, make this modification only when appropriate so as to not inadvertently change the effect of the language from its original intent.
Conclusion: The Value of Clarity
The confusion that resulted from the interpretation of "and" in this action highlights the importance of drafting with clarity and ensuring that the document accurately reflects the parties’ intent. The Judge emphasized that the Court was bound by the intention of the parties at the time they entered into the contract and only averred that "and[s]" were added "due to a drafting error." As in this case , the history of corrections should clearly show a pattern for the court to follow or otherwise ensure that the intention of the parties is clearly set out in the contract so as to reflect their actual intention at the time of execution.