And Means And (Or) Or; Let’s Make That Clear

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  • The third (or the fifth) most used word in English is “and.” We looked at one of our “comprehensive” lease forms, one with 32,815 words and found that 1,775 (5.4%) of its words are “and.” We looked at a “national” Loan and Security Agreement (55,104 words) and found that “and” made up 3.3% of its words (1,820 of them). So, it’s about time we looked at this word. One thing for sure is that it is a “conjunction,” that “part of speech” covering words that join phrases. (A minor usage is as a noun. Witness: “He accepted the job, no ifs, ands or buts about it.”)

One on-line dictionary explains the word’s use as a conjunction in this way: “[It is] (used to connect grammatically coordinate words, phrases, or clauses) [as follows:] along or together with; as well as; in addition to; besides; also; moreover.”

Well, that came as no surprise! If you look at tons of dictionaries, you’ll find many different ways of expressing the same definition, each concluding that “and” is a “conjunctive,” a fancy way of saying that it “joins” phrases. It is in that sense we write about “and” today. Intellectual honesty, however, compels us to point out that there are court decisions, very few in number, but not to be ignored, holding that “and” can mean “or.” “Or” is a “disjunctive.” As such, it sets up alternatives. We offer the following from a patent dispute case [seen by clicking: HERE]:

In  light  of  the  plain  language  of  independent  [patent] claim  1,  several  dependent  claims, the specification, and the  extrinsic  evidence,  this  court sustains the trial court’s ruling that, in the circumstances of this case, claim 1’s use of the term and means or.

Today’s blog posting arises out of our reading of a February 28 decision from the District Court of Appeal of Florida, Second District, one that can be read by clicking: HERE. It involves the exercise of an attempted exercise of a purchase option by a tenant who frequently used rubber checks to pay its rent. One issue was whether, assuming the option exercise was valid, who would qualify as an appraiser when setting the purchase price? [Another issue, one we’ll ignore, was whether the tenant could assign the option separately from assigning the lease. Assigning the lease required the landlord’s consent; the lease was silent about assigning the purchase option.]

The lease used a fairly common approach where the parties didn’t agree on a price. Each party would choose an appraiser. If a party failed to identify “its” appraiser within a given period, the other could choose one for it, effectively selecting both appraisers. Not just anyone could be chosen. Here is how the lease put it:

Each appraiser shall be a Florida licensed real estate appraiser and shall have at least 10 years [of] experience in commercial properties in Sarasota, Florida. [Underlining is by Ruminations.]

If either party fails to appoint an appraiser in the manner and within the time frame described above, then the other party may by written notice to the first party appoint an appraiser on behalf of the first party.

[In a footnote, the court pointed out and then ignored an ambiguity created by “Sarasota, Florida.” Sarasota is the name of both a city and a county.]

The landlord chose a Florida real estate appraiser who had been licensed for about seven years, not ten. The tenant insisted and paid its attorneys to argue, that this appraiser was not qualified because he was three years short of the required ten years. Yes, we know, almost every reader is now saying, “Get over it. That’s not what the lease’s provision requires.” So, either the lower court judge is not a reader of this blog or falls outside of the “almost every” qualification we’ve written. The lower court agreed with the tenant.

The appellate judges took a more conventional view. It’s unlikely they read Ruminations, but they certainly knew how to find Black’s Law Dictionary and a very fine book: Reading Law: The Interpretation of Legal Texts by (the late) Justice Antonin Scalia and the (very much alive) Bryan A. Garner. [The court didn’t note that beginning with its seventh edition, Black’s has been edited by Mr. Garner. The court referenced the sixth edition. Our seventh edition does not define: “and.”].

Setting all of that aside, the sixth edition of Black’s asserts “it is said that there is no exact synonym of the word (“and”) in English, it has been defined to mean ‘along with,’ ‘also,’ ‘and also,’ ‘as well as,’ ‘besides,’ ‘together with.’”

Scalia and Garner are clearer (in our view) when they wrote: “and combines items.” … “A common interpretative issue involves the conjunction and, which (if there are two elements in the construction) entails an express or implied both before the first element.”

Based on these two sources, the court rephrased the lease’s provision as follows:

Applying Black’s Law first, the appraiser requirement would read:

      Each appraiser shall be a Florida licensed real estate appraiser

      [along with/as well as]

      shall have at least 10 years experience in commercial properties. . . .

Applying the interpretive rule of Scalia and Garner, the provision would read:

      Each appraiser shall be [both] a Florida licensed real estate appraiser and

      shall have at least 10 years experience in commercial properties. . . .

We conclude the provision at issue must be read as imposing two requirements: first, the appraiser must be a Florida licensed real estate appraiser, and second, the appraiser must possess ten years of experience in commercial properties in Sarasota …

Unsurprising you say? It’s not shocking that “and” implies two separate requirements – not only “licensed,” but ALSO with ten years’ experience. But, absent the successful appeal, that wouldn’t have been the interpretation. Perhaps that’s why Ruminations prefers phrasing like:

Each appraiser must: (a) be a Florida licensed real estate appraiser; and (b) have at least 10 years’ experience in commercial properties in … [location].

[Actually, we wouldn’t write: “experience in commercial properties,” but that wasn’t at issue in this case. Tenants, landlords, snow removal contractors, and others have “experience” in commercial properties.”]

Once again, readers, we all (and that includes us) need to say what we mean, and mean what we say. We who craft documents are not supposed to be rainmakers for litigators.

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Comments

  1. Elliot L. Warm,. General Counsel says:

    I must be missing the point. I don’t see how the clause was not perfectly clear to begin with. What is the alternative meaning of “and” that would not require both of what you suggested as “a” and “b?”

  2. I’m with Elliot on this. However, Ira’s suggested “a” and “b” construction is equally clear. Think of how the water would be muddied by adding “also” so that it read “a” and also “b”. Redundancy abounds! Would that make things more clear or less clear?

    • I wasn’t going to weigh in, but even if you, Elliot, and Ruminations think the lease’s original wording was clear, the proof that it wasn’t is that a judge interpreted it differently, and it took an appellate court to validate our interpretation. So, by definition, the interpretation of this particular “and” was not clear.

  3. Jason Kirkham says:

    I looked at the DCA decision, and am also confused.

    The opinion says that the Landlord’s appraise did not have 10 years of experience.

    The opinion then says that Purchase Option required the appraiser to meet 2 requirements: “first, the appraiser must be a Florida licensed real estate appraiser, and second, the appraiser must possess ten years of experience in commercial properties in Sarasota, Florida.”

    The court then says that the Landlord’s selection met both requirements.

    How does that make sense when the court wrote only a few lines above “as of the summer of 2015, [the appraiser] did not have ten years of experience.”

    I’m probably just missing something obvious. If someone could point it out, I’d really appreciate it.

    • Elliot L. Warm,. General Counsel says:

      I am equally confused. I still don’t know why there was an issue at all. I remember all the hubbub about the word “is” from a statement of Bill Clinton, and now I remain hard pressed to think that “and” can mean anything other than “also,” “plus” or the like. In other words, “and” is “and.”

      • irameislik says:

        Again, with some hesitation, I’m stepping into a “reader’s” discussion.

        You’ve both focused on what the appellate court concluded. In doing so, it reversed (possibly rebuked) the lower court’s ruling that the “and” grafted the 10 years on the license requirement, essentially saying that a qualified appraiser had to BOTH be licensed as such in Florida for 10 years AND have 10 years’ experience in commercial property in Sarasota. The issue was whether the 10 years applied to both side of the conjunction. So, the lower court ruled that the 10 years applied to both sides of the “and.”

        More commonly, this “question” comes up when something is written as: “The Appraiser must for 10 years be experienced in commercial property and be a Florida licensed appraiser.” [Awkwardly and too quickly written, but you should get the idea as to whether a modifier crosses the “and.”

        We all need to consider whether what we think is “clear” and unmistakable when someone else, especially a court, reads those words differently than what was intended. Yes, at the end of the day, the lower court judge (and the tenant’s attorneys) were “wrong” about how to “use” the 10 years, but their being wrong doesn’t mean the phrasing was perfectly “clear” in the first place.

        • Elliot L. Warm,. General Counsel says:

          I appreciate your stepping in, because now I at least have a basic understanding of the other view, much as I find it rather strained. Further, I understand the continuing thrust of your articles about lawyers needing to consider language very carefully so as to take into account all possible meanings and avoid any ambiguity at all, to the extent feasible. I do have to say that no matter how many times I would have re-read the clause in question, I would not have contemplated an alternate meaning. Maybe another pair of eyes would have. On the other hand, the sentence as you wrote it above would, I think, logically suggest that the ten years applies to both items noted. A comma after the word “property” would possibly change the meaning, although that is a case where the sentence must be written more clearly.

  4. Tim Scott says:

    “shall be … and shall have … 10 years [of] experience”
    This could not have been written more clearly & directly to require 2 specific qualifications: “shall be” “and” “shall have” – 2 standalone mandatory shall clauses joined by “and” not “or”, and with the 10 years only modifying the experience requirement (though the experience statement, as Ira notes, is very poorly crafted). If the judge got this one wrong after acknowledging that the appraiser didn’t have 10 years of experience, he would just as easily ignored Ira’s (a) and (b). That sentence was properly constructed to yield only one interpretation. That judge willfully misconstrued the lease, probably b/c he thought 3 more years didn’t matter or didn’t like the rubber check writer making a technical argument. You can’t possibly craft around willful misinterpretations of every clause in the lease.

    • Yes, this troubles you, me, and plenty of others. I was in Walnut Creek a little more than a week ago when I saw at a sign outside a public school. It read: “Free lunch and snack for kids.” Is the snack free? Is the free lunch available for adults? How does the “and” work here. Let’s not use our “intentions” to “be sure” what the sign’s sponsor intended.

      Using the (a) and (b) approach, the modifier “free” can clearly be assigned to only those terms intended to be free. “This school provides kids with free: (a) lunches; and (b) snacks.”

      In my view, the lower court judge was wrong, but I understand what was going through her or his head. As to the landlord’s attorneys arguing for applying the 10-year requirement to both qualifications, even if they didn’t heartedly believe their argument (something I wouldn’t know), they certainly exploited the possibility that it could be sold to the judge.

      The point to be made is that if someone believes what we’ve written isn’t clear, then it isn’t clear, the proof being that someone didn’t think so. Redraft – it is better to be safe than sorry.

      • Elliot L. Warm,. General Counsel says:

        Point well made. Of course, lawyers tend toward the pompous and “lawyer-speak” in their language, and it would be a lot better simply to write “free lunches and free snacks” for a “normal” reader. I do, however, understand the basic need for the (a) and (b) construct in certain situations.

      • Tim Scott says:

        Free lunch may be for anybody – it’s not clear that its for kids – and then the snacks for kids may not be free. That is a poorly crafted statement that isn’t analogous to a clear statement with 2 mandatory and self-contained shall clauses. With great respect Ira, if the judge got this one wrong the judge would happily ignore the (a)(b) approach. The analogy apt here is bad facts make bad law. The judge wanted an outcome and he willfully ignored the parties obvious intent to achieve his/her desired outcome. I’ll also note that the author of the sentence probably thought he/she was clarifying a statement that in some earlier iteration or form read “Each appraiser shall be a Florida licensed real estate appraiser with 10 years experience … ”
        I often remind people that our job is to craft a document not for when everybody is getting along, but rather for when something goes wrong, and that our job is to draft clearly so business people can read and understand their deal (and avoid litigation) and judges/fact finders can’t misinterpret it. But this one is not on the drafter – it’s on the judge.

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