contract-law
How should &quot;And&quot; and &quot;Or&quot; be used when listing items in a contract?
<p>In a contract, if there is a list where each item in the list is to be upheld, should the word “or” or “and” be used?</p>

<p>For example say there is a lease which aims to prohibit illegal activity in a house. What is the difference between stating:</p>

<p>1) “No illegal activity is permitted in the house, including manufacturing OR selling drugs”</p>

<p>vs</p>

<p>2) “No illegal activity is permitted in the house, including manufacturing AND selling drugs”.</p>

<p>It would seem 2) is more correct as AND is showing the list is being added to, but could someone argue they were only selling drugs in the house, but not making them?</p>

<p>I know this is a bit of a silly example, but I red at the end of the day it’s really what someone can convince the jury of. What if someone really did interpret the contract that way (because they were dumb) then would that hold in court? </p>

<p>A court will look to the intent behind the words; a contract is not read as though it were written in Boolean logic. That is, they will try to determine from all the facts of the contract; which includes but is not limited to the written terms, what the parties agreed to.</p>

<p>In common usage, OR denotes exclusive alternatives and AND requires all elements to be present. For your example OR is better, however, it could be argued that if the person were doing both then they were not in breach - the court would doubtless treat that argument with the contempt it deserves. This is because the list is merely providing clarification of the essential term.</p>

<p><strong>The Plain-Meaning Rule</strong>
A principle used by courts that applies to both statutory and contract interpretation is the Plain-Meaning Rule. It provides that the objective definitions of contractual terms are <em>controlling</em>, irrespective of whether the the language comports with the actual intention of either party.</p>

<p>This rule provides a plausible legal basis for arguing that only a tenant engaged in both manufacturing <strong>and</strong> selling of drugs is in breach of the contract terms. While in your self-described "silly example", such an argument is unlikely to prevail, imprecise and/or ambiguous language in contracts can produce unexpected legal results.   </p>

<p>There is no difference in what the two wordings say, because the "including" clause does not contribute anything to the situations identified as permitted. Manufacturing drugs is illegal, selling drugs is illegal, and therefore "No illegal activity is permitted in the house" all by itself prohibits either activity (and therefore both activities). The word "including" does not mean "specifically" – if the contract has said "<em>specifically</em>, manufacturing..." then there could be a question of whether other unspecified illegal activities are disallowed. It would not even be necessary to inquire into the intent of the tenant and the intent of the landlord in making this contract, and whether they didn't actually have a meeting of the minds.</p>

<p>That said, you should use "or", to reflect the fact that any one of these activities is supposed to not happen, and "or" means "any one". Interpretive problems arise when you have something negative to the left of a conjunction or disjunction, owing to De Morgan's Law ("not (A or B)" is different from "not A, or B"). </p>
