Retail Real Estate Law involves a lot of writing – purchase contracts, leases, loan documents, and so on and so forth. When you finish organizing your sock drawer, you can make your own list. When the “deal” is successful, the words we use probably don’t matter very much – the parties will abide by what they agreed to do in the first place. When the deal goes sour, however, attorneys are hired to scour the documents to find meanings, many of which were never intended in the first place. This isn’t limited to Retail Real Estate Law matters, but that’s no reason not to muse about it.
To list situations where words have been construed out of their context by persons who weren’t there when they were written, might take as long as it would take to make a list of the kinds of legal documents that have words. So, this entry only aims at giving some examples.
I’m sure many courts have railed against the use of “and/or,” but my home state probably wins the award for the most researched opinion on the subject. Look at these excerpts from In Re Estate of Massey, 721 A.2d 1033 (N.J. Super. Ch. Div. 1998):
The simply stated, yet deeply, perplexing issue raised involves a bequest in a Will which directed that one-third of the residue should pass “to my niece, DIANE HALL and/or Grandniece, CARLY HALL.” Beyond the shadow of any doubt, the use of the phrase “and/or” in that setting is utterly ambiguous and convolutes the ascertainment of the decedent’s intent.
Indeed, the use of “and/or”, notwithstanding its setting, has been roundly criticized-and deservedly so. In Employers’ Mut. Liability Ins. Co. v. Tollefsen, 219 Wis. 434, 263 N.W. 376, 377 (Wis.1935), it was said: We are confronted with the task of first construing “and/or”, 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 its precise meaning, or too dull to know what he did mean.
According to Massey, the use of “‘And/or’ has been quite rightly defamed on many occasions. The ‘golden age’ of criticism for this phrase appears to be the 1930s,” and it goes on to list citation after citation as well as many excoriating descriptions employed by earlier courts around the country. I invite you to check out the Massey citation.
So, why do we still use: “and/or.” Does it mean: “pick the alternate that you like best under the circumstances”?
Here is another example. A condominium association’s master deed said: “No bird, reptile, or animal of any kind shall be raised, bred, or kept in any Unit … except that dogs, cats, or other household pets are permitted, not to exceed two in the aggregate… .” Does this prohibit the keeping of a parrot, clearly a bird? The Condo Association said, “yes,” and use the unit owner’s money to press that point. An appellate court said, “no,” finding that the restrictive covenant permitted “household pets” and that term is commonly understood to include birds. It held that restrictive covenants are treated as contracts, and a contractual term is ambiguous if reasonably susceptible of two meanings. In this matter, the court found the restrictive covenant was readily susceptible to the unit owner’s interpretation, and the language of the covenant had to be evaluated from the perspective of a buyer of a condominium unit. It concluded that the master deed allowed the keeping of dogs, cats or other household pet as the term “household pet” was commonly understood.
In a lease dispute, a tenant argued “that the language of [a] rider was ambiguous, specifically, that the phrase ‘within sixty days of the termination of this Lease’ did not necessarily require such notification in the sixty days preceding the termination of the Lease.” It contended that it could as easily be read to mean that the option could be exercised within the sixty days following the termination of the lease. It pointed to other portions of the lease in which the phrase ‘within’ clearly referred to a period after a defined event. Here, the dispute was over a lease renewal and the court concluded that it wasn’t logical that a lease could be renewed by giving notice after it had already terminated. But, the courts recognized that, in other cases, “within “x” days of” some event could mean on either side of the date of that event. This very, very common use of the word “of,” instead of “after” cost a lot of money.
How about this Lease provision: “Tenant shall have the option exercisable in writing forwarded to Landlord . . . no less than six (6) months before the expiration of the original Lease Term, to extend the Lease Term for two (2) additional consecutive five (5) year periods each.” A lower court agreed with the landlord that both renewal options had to be exercised at the end of the initial lease term. The Tenant had exercised one at that time and then attempted to exercise the second renewal option at the end of the first option period. The appellate court didn’t hold that to be ludicrous and clearly not the parties intended. Instead, what it said was: “this is ambiguous,” hold a trial to determine the parties’ true intent when this provision was drafted. How wasteful!
Point made (I hope). These four examples are merely a scratch on the surface. You can send comments with your own examples. What makes these four interesting is that they represent a class of “generic” drafting mistakes, ones that have nothing to do with the specifics of a deal. They are mistakes that have become “boilerplate.”
By the way, “ambiguity” means something may have two meanings; “vagueness” means it has no definite meaning. Both should be no-no’s.
Excellent Article!
Harvey M. Haber, Q.C. J.D.
Ken Adams recently addressed this same topic at his Koncision Drafting blog. Ken noted that and/or is not the villain that many assume; “a and/or b” is short hand for “a, or b, or both of them.” In his view, the problem occurs when people use and/or without bothering to think about what they mean, or about what and/or means, or both, and then use it inappropriately.
The bequest you cited is a perfect example. No one would think of bequeathing one-third of the residue “to my niece, DIANE HALL, or my Grandniece, CARLY HALL., or both of them.” Did he mean to split the 1/3 if they both survive him, but give the entire 1/3 to the survivor of them if only one survives him? and what if one survives him but the other leaves issue who survive him? The problem is not and/or, it’s failing to think about what he meant to accomplish by and/or.
By contrast, recasting my summary as “the problem occurs when people use and/or without bothering to think about what they mean, and/or about what and/or means, ” may be less elegant, but creates no ambiguity.
Jack, as usual, your’s is an excellent observation and/or refinement. I think where you and I come together on this, is as follows. My contention is that people write and/or when they don’t know how to write something precisely. They know they mean: “either or both of x and y,” and think that when they write “x and/or y,” everyone else will agree. If they wrote out “either or both of x and y,” they would immediately understand what they had written and would know whether it was what they had intended or not.
Now, is it “either or both of x and y” or “either or both of x or y”?
Let’s not talk about “the said” thing. “Said” is so, so 18th century for “the,” and I really never figured out what “the the” meant. I’m guessing it’s harmless, whereas “and/or,” under differing circumstances, might or might not be .
excellent article esp about the lease renewal ; just careless drafting causing untold legal costs
if tenant loses the case will there be a claim against his lawyer ????
Ira, very excellent post. I vote for “either or both x and y” . If you say “either or both x or y”, it seems like you’re saying “or” twice, it looks sloppier. I loved the excoriation of “and/or” in the Massey case. And I find nothing wrong in the use of the word “said” to refer back to a concept expressed earlier in a sentence or a previous sentence(s). It may be 18th Century but there’s nothing wrong with honoring our forebears by preserving a stylistic construct. We’re not really any smarter than they were, smartphones notwithstanding. As Tevye exclaimed, “tradition, tradition”.