The potentially confusing use of «and» and «or» has long been noticed by legal writing students. USE, Successions. A trust rested on another, who was appointed tenant of the land or tenant of land, that he should sell the land in accordance with the intention of the use or the one whose use had been granted to him, and let him take the profits. Ploughed. 352; Gilb. on uses, 1; Ferry. Tr. 150, 306; Cornwall on uses, 1 3; 1 fonb. Eq.
363; 2 Id. 7; Sanders on uses, 2; Co. Litt. 272, b; 1 co. 121; 2 Bl. Com. 328; 2 bouv. Inst. n. 1885, ff.
2. To create a use, there must always be good consideration; However, once they have been collected, they can be passed on to a foreigner without compensation. Doctor. & Stu., compose chap. 22, 23; Steal. Ms. Conv. 87, n° 3. The uses have been attributed to the fidei commissum (s.
v.) civil law; it was the duty of a Roman magistrate, the praetor Fidei Commissarius, whom Bacon called the respective chancellor in order to enforce this trust. Inst. 2, 23, 2. 4. Usages were introduced into England by the clergy during the reigns of Edward Ill or Richard II to circumvent the statutes of death; And the clerical chancellors of the time regarded them as fidei commissa and binding in conscience. In order to avoid many inconveniences and difficulties which had arisen from teaching and the introduction of usages, the law of 274 Henry VIII, ch. 10, commonly referred to as the law of use, or in transfers and pleadings the law for the transfer of uses in possession was enacted. It states that «if a person is seized of land, &c., for the use, trust or trust of another person or political society, the person or entity having the right to use in fee simple, fief, life or years or otherwise, shall henceforth be seized or seized of the land, &c., by and in a similar estate, how they trust or trust the use; and that the property of persons so seized for use shall be deemed to belong to the person or persons who have the use in the quality, manner, form and quality which they previously had at the time of use. The law therefore regulates the use; that is, it transfers possession to use and transfers use to possession; And in this way, the Cestui Que becomes the full owner of the land and tenements, both legally and fairly. 2 Bl. Com.
333; 1 Saund. 254, footnote 6. 5. Modern usage has been defined as an area acquired by application of the staff regulations of 27 hens. VIII., c. 10; and which, if it may take effect under the rules of the common law, is called legal property; And if it is not authorized, a use is designated, with a term that describes its change. Cornwall on uses, 6/35 The judges of the common law, in interpreting this law, have held that a use cannot be invoked for a use; dyer, 155 A; and that in response to a gift to A and his heirs, for the use of B and his heirs, in trust for C and his heirs, the law made only the first use and the second was a mere nullity. The judges further noted that the law only mentions persons who are seized for the use of others, but does not extend to a period of several years or other movable interests of which a sentence is not seized, but only possessed. Ferry. Tr. 336; Poph.
76; Färber, 369; 2 Bl. Com. 336; The rigid literal interpretation of the Statute by the courts has reopened the doors of the registration courts. 1 crazy. Cap. 448, 450. With respect to the use of the phrase «and/or», we stated in the drafting of legislation that the use of this wording is not recommended because it leads to uncertainty, ambiguity and diversity. Nevertheless, the term is still often, but perhaps not intentionally, used in the preparation of contracts, negotiable instruments and similar documents.
When used, the generally accepted meaning is that «and/or» means either «and» or «or», or both. I am always surprised by the number of intelligent, articulate and literate lawyers who still use «and/or» in legal writing. The slash. has few uses in formal writing, except with dates and fractions. He is best known as the main character in two grammatical abominations: and/or and he/she. It is particularly unsuitable for legal drafting because it is inherently ambiguous. A commercial use is the dominant and accepted custom in a particular trade or industry and is not tied to a geographic location. The law assumes that traders are aware of the use of their business. Commercial usage completes, qualifies and gives a particular meaning to the terms of an agreement for the purposes of its interpretation. I dare to add that, in my view, the expression «and/or» is at best a vague and ambiguous term which would be best avoided in formal acts affecting the interests of the patrimony (Lord Russell, 64). It is obvious that we are faced with the task of first constructing «and/or», this confused, nameless thing, this verbal monstrosity in the face of Janus, neither word nor sentence, the child of a brain of someone who is too lazy or too boring to express his exact meaning, or too boring to know what he meant, This is often used by lawyers today when drafting legal documents.
out of negligence or ignorance, or as a clever way of hiding meaning rather than expressing it in order to promote the interests of their clients. We have even observed the «thing» in legislation, in court opinions and in statements in lawyers` briefs, some of which have been taught and some of which have not. Regarding the use of the alternative subjunctive «and/or», suffice it to say that we do not consider it to be a reversible error, but that we take a position vis-à-vis this prestigious law firm that has condemned its use. He is one of those inexcusable barbarians engendered by inertia and condemned by indifference, and has no more place in legal terminology than the colloquial language of Uncle Remus in Scripture. I can`t imagine how such useless jargon becomes topical. The minter certainly did not appreciate concise and concise legal English. Mr. Ted Your research and efforts are great and I have been in the profession (in India) for 6 years and I often encounter many errors in legal wording and even judgments that put me off, I am glad I made this «and/or» mistake and I thank Mr.
James – 1. I learn, please give more. Otherwise, the strongest support for «and/or» I found comes from my copy of Fowler`s Modern English Usage, 3d ed (London: Oxford University Press, 2000), where it is suggested that «and/or» was first recorded in legal contexts in the mid-19th century (little reason to support its continued use). The sentence is described as «a formula indicating that the elements can be taken together or as alternatives». The text further notes that it is «still used from time to time in legal writing,» but then notes that it «borders on inelegance when used in general writing» and that the «most practical way to express the same idea is to use `X or Y or both` or, in many contexts, simply `or`. (page 53). So I`m creating this article to document a fairly comprehensive list of agencies that support what I think is the best (if not obvious) point of view: Never use «and/or» in legal texts (or other writings). And yes, I said «never.» From that moment on, two different types of interests could coexist in the country, a fragmentation between legal and useful.
USE. Long and consistent practice. In its broadest sense, this term includes custom and regulation, although it differs in a narrower sense, it applies to habits, modes and courses of trade observed in commerce in general, for example to all commercial transactions or to certain branches of commerce. 2. Commercial custom need not be immemorial to establish it; If it is known, safe, uniform, reasonable and not illegal, it is sufficient. But the evidence of some cases where such a thing has been done does not justify the use. 3 watts, 178; 3 Lav. C. C.
R. 150; 1 Welsh. 443; 5 binn. 287; 9 Selection. 426; 4 B. & ald. 210; 7 Peter 1; 2 Wash. C. C.
R. 7.3. The customs of trade provide land on which contracts can be properly built. They make it possible to determine the vague intention of the parties, the nature and scope of their contracts resulting from mere implications or presumptions, as well as from acts of an ambiguous nature; and the meaning of dubious words and expressions may become known. 2 meters. 65; 2 sums. 569; 2 G. and J.
136; 13 Selection. 182; History about Ag. § 77; 2 Kent, Com. 662, 3rd edition; 5 wheat. 326; 2 cars. and p. 525; 3 B. & Ald.
728; Park. on Ins. 30; 1 swamp. Ins. 186, No. 20; 1 Caines, 45 Gilp. 356, 486; 1 Edw. Ch. R.
146; 1 N. & M. 519; 15 Fair 433; 1 rill, r. 270; Wright, Room 573; Domestic animal. C. C. R. 230; 5 Hamm.
436 6 Peter 715; 2 Peter 148; 6 Porter, 123 1 Hall, 612; 9 Fair 155; 9 Wheat. 582 11 wheat. 430; 1 Peter 25:89. 4. Courts will not easily adopt these uses because they are often wrongly justified. 2 sums. 377. See 3 Chitt.
Pr. 55; History, Confl. laws, § 270; 1 Dall. 178; Vaugh.