To and/or (and/)or not to and/or?

As far as we are concerned, there is no question and it turns out that we are not alone in condemning the use of  ‘the bastard conjunction and/or’.
As early as 1932 the American Bar Association Journal described it as an ‘accuracy-destroying symbol’ and ‘a device for the encouragement of mental laziness’. This sparked a debate between the ‘Andorians’ and the ‘anti-Andorians’. We are resolute anti-Andorians, because we feel that even though it may save a few words, it is (at best) difficult to understand and (at worst) inherently ambiguous.

‘And/or’ means ‘the one or the other or both’. In cases where that distinction is necessary, it is good practice to choose the unambiguous ‘the one or the other or both’. If you  find on the website of a hotel the information that “every room has a bath or a shower or both” instead of “every room has a bath and/or a shower”, you as customer will clearly know what to expect.

Much to our delight, we stumbled across some authority for our convictions in Berman v Teiman 1975 (1) SA 756 (W) 757D-G. That case led us to the decision in  in Conitto v Fuerst Bros. & Co. Ltd., 1944 A. C. 75 which gave us ‘the bastard conjunction and/or’. It also pointed us to the case of In Re Lewis, Goronwy v Richards, (1942) 2 All E. R. 364 (Ch) in which judge said that: ‘It is an unfortunate expression which I have not met before  and which, I hope, I may never meet again.’ And finally in Fadden v Deputy Federal Commissioner of  Taxation, (1943) 68 C. L. R. 76 it was described as ‘an elliptical and embarrassing expression which endangers accuracy for the sake of brevity’.

Our favourite however, came from our own shores when Judge van de Heever (in Ex parte McDuling, 1944 O. P. D. 187) pointed out that (and I translate): ‘You might as well say trousers is and/or are.’

Wondering if your consumer contract is in plain language? Turns out it can be sunk by two little conjunctions.

About the Author:

Elizabeth de Stadler
Elizabeth is the quirky one in the company. She specialises in all things Consumer Law, plain language drafting and designing and delivering training. She prides herself on being slightly out there and bringing a fresh perspective to compliance issues. She has a Masters (cum laude – the nerd) in Consumer Law. Elizabeth met Paul in 2011 and joined Esselaar Attorneys (she is still a senior associate at the firm). In 2013 they founded Novation Consulting together. Elizabeth is a bit of a nerd. She is the editor of the Consumer Law Review (you can get it here for free!) and wrote A Guide to the Protection of Personal Information Act with Paul. She is also the author of Consumer Law Unlocked, a co-author of the hefty Commentary to the Consumer Protection Act and wrote chapters on the Consumer Protection Act in The Law of Contract in South Africa and The Law of Commerce in South Africa. She is currently working with Liezl van Zyl from the Stellenbosch University Language Centre on Plain language legal drafting, which will be published in 2017. Elizabeth loves Lego, sneakers, zombies and white wine. She hates comic sans font, sweet potato and most other attorneys. She is allergic to suits and ‘office shoes’ because of the years she worked at Webber Wentzel. She is very scared of moths. It is a thing – read about it. Want to find out more about Elizabeth? Check her out on LinkedIn. Better yet, contact her on elizabeth@novcon.co.za or (021) 481 8004.