By: Kenneth A. Adams & Alan S. Kaye
Most general works on legal drafting contain a discussion of
ambiguity, and usually such discussions touch on the ambiguity
associated with the words and and or. Treatment
of this topic has, however, been characterized by
oversimplification and error. This is not without consequence, as
an element of this flawed analysis has made its way into case
law.
In this article, the authors reexamine the ambiguity engendered
in legal drafting by and and or. They do so in a
way that reflects linguists' understanding of the subject, and they
explore how ambiguity varies depending on the grammatical
context.
After defining ambiguity and distinguishing it from vagueness
and after considering the significance of context, this article
examines the ambiguity engendered by plural nouns, a topic that is
closely related to the ambiguity of and and or.
It then discusses in turn the ambiguity engendered by and
and by or and closes with a discussion of and/or
and the ambiguity of and used in conjunction with or. Any
marked divergence from analyses offered elsewhere in the literature
on legal drafting is noted.