Drafting with 'And' and 'Or'
Drafters of contracts, wills and statutes are plagued with the ambiguities inherent in the use of these two connectors. This lesson is designed to identify these ambiguities and then help students to draft with conjunctions which eliminate those ambiguities.
After completing this lesson students should be able not only to identify ambiguous uses of 'and' and 'or' so that they may better analyze contracts, wills or statutes which they read, but they should also be able to draft documents so that ambiguities are avoided. A variety of real life applications are presented for each drafting problem and students are called upon to draft solutions. Students will interview a client to determine which meaning is appropriate, thus reinforcing the notion that drafting is an iterative process calling upon the lawyer to identify and clarify ambiguities in the client's instructions.
This ambiguity inherent in 'and' and 'or' is discussed at length in Scott Burnham's Drafting and Analyzing Contracts (4th ed. Carolina Academic Press). This lesson uses Burnham's taxonomy as its basis.
Photos reprinted with permission of the author.
On completion of the lesson, the student will be able to:
1. Evaluate whether "and" and "or" are used ambiguously in the terms of a contract.
2. Select the appropriate language to draft contract terms that express the intended meaning using "and" and "or."