Yesterday, the Minnesota Court of Appeals released an unpublished opinion that contains the following paragraph about the usage of “and/or.”
The phrase “and/or” is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. Laypersons often use the phrase and, surprisingly, lawyers resort to it from time to time. It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the “and” and the “or” in the context of the subject matter. Or the drafter could express a series of items as, “A, B, C, and D together, or any combination together, or any one of them alone.” If used to refer to a material topic, as here, the expression “and/or” creates an instant ambiguity. Furthermore, as one legal-writing authority noted, a bad-faith reader of a document can pick whichever one suits him—the “and” or the “or.” Bryan A. Garner, Looking for Words to Kill? Start with These, STUDENT LAW., Sept. 2006, at 12-14. At the very least, this sloppy expression can lead to disputes; at the worst to expensive litigation.
The quoted paragraph is the last paragraph of the opinion. The link to the 8-page opinion is here: http://www.mncourts.gov/opinions/coa/current/opa091018-0406.pdf
The contract sentence the Court was trying to understand read:
"[the released claims are those that the parties] now have or may have in the future, and/or which were, should have or could have been brought in connection with the Litigation.”
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