Friday, 16 December 2011

Word and/or phrase

Talking the other day to a former colleague and professional pedant (in the best sense of the word: indeed, there should be no bad sense of it) I bemoaned the use of the expression "and/or". Of course, he had a relevant quote, but he rattled it off so quickly that I missed it. I spent a few minutes in the Law Society Library subsequently trying to find what he had been talking about, and came up with some great material - but not what I was after ...
"... 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 ..." Employers Mut. Liab. In.s Co. v Tollefsen, 263 N.W. 376, 377 (Wis. 1935), per Fowler J.
And (or or, or both):
"To our way of thinking the abominable invention and/or is as devoid of meaning as it is incapable of classification by the rules of grammar and syntax." American Gen. Ins. Co. v Webster, 118 SW 2d 1082, 1084 (Tex. Civ. App. Beaumont, 1936) per Combs J.
Excellent stuff. The American courts always get there first, and usually say it very well. There are instances over there of statutes being struck down for uncertainty because of their use of the monstrosity. All I found from the English courts - all that merited repeating, anyway - was Lord Reid in John G Stein & Co v O'Hanlon [1965] AC 890, saying that the expression was "not yet part of the English language". In fact, it could be argued - couldn't it? - that he was wrong, by the mere act of uttering it himself. But 21 years earlier Viscount Simon had formulated the most powerful denunciation of the usage - too strong, perhaps, for judicial repetition:
"... the bastard conjunction ... which has, I fear, become the commercial court's contribution to basic English."
Bonito v Fuerst Bros [1944] AC 75, which Robert directed me to after I asked him to repeat it. It's good to know that even with a world war in progress the then Lord Chancellor could find time to try to keep the language on the straight and narrow. A pity that judgment isn't required reading in law schools.

Oh, and you'll find the sources explored at some, entertaining, length in Miscellany-At-Law by the great Sir Robert Megarry. A book that should be on the shelves of every lawyer - why have I never had a copy?

For anyone looking for a steer: the abomination can usually be replaced just with "or", and if necessary the formulation "A or B, or both" (or, I suppose, "any one or more of A, B and C") can be deployed without damaging the language, or offending a pedantic reader. And it will be clearer what is meant.

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