And/or

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What does And/or mean in American Law?

The definition of And/or in the law of the United States, as defined by the lexicographer Arthur Leff in his legal dictionary is:

A term thoroughly detested by all commentators on draftsmanship for its dangerous and confusing ambiguity: does it mean “and,” “or,” or “any one or any combination”? One can, however, understand the source of the impulse which created “and/or.” Let us say that one wishes to express the idea that, with respect to two or more items on a list, any one item or any combination of items on the list is to bring about a particular result, e.g., “Additional notice of the commencement of the suit must be given by registered mail to any defendant who is out of the jurisdiction, insane under the age of eighteen.” Now, what does one put in the blank? “And” is

obviously a bad idea, for the indicates that notice is to go only to insane minors who are out of the jurisdiction. “Or” is much better since it clearly means that either absence or insanity or minority triggers the notice provision. But technically, an insane minor is not insane or under eighteen but both insane and under eighteen; does the provision apply to him? Of course it does, at least to any sane interpreter, but wouldn’t it be nice to be able to say so explicitly? Hence “and/or.”

Nonetheless, “and/or” is a bad drafting idea. If the meaning of and/or had stabilized as “any one on the list, any combination of any number on the list, and all items on the list together,” or “either one or both together” it wouldn’t be an unhandy locution to have available in such short form for statements like “jurisdiction may be acquired by personal service and/or publication.” But that is frequently not what the draftsman would want it to mean if he thought about it. In short, “and/or” is not just ambiguous, but conducive to plain old misdrafting. Thus, if one wants to say “any one or any combination,” and is afraid plain “or” will not do the trick, one ought to use a few extra words to write out the idea “any one or any combination” unambiguously.