Also known as: disjunctively · disjuncta · disjunctim
Written by attorneys · grounded in primary & secondary sources — see below
A phrasing or statutory construction that presents alternatives by using the word or rather than requiring concurrence of all listed elements. The construction creates independent options so that satisfaction of any one listed condition suffices. Courts apply the construction to determine which party bears the burden of proof or which remedial path is available.
Dominic Drake's will leaves income to his sister for life then directs the trustee to distribute principal to his nephew or the nephew's issue. The nephew dies before the sister. Because the remainder is expressed in the disjunctive the nephew's interest is treated as subject to an unrestricted condition of survival so the property passes to the nephew's living issue rather than through the nephew's estate.
Delilah Duran leads the board of Drake Logistics when it approves a merger that includes a no-shop clause and a force-the-vote provision. A competing bidder sues claiming the measures are draconian. The court applies a disjunctive test and invalidates the provisions because they are both preclusive and coercive regardless of the board's good-faith belief that the deal was superior.
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David Dawson is charged with mail fraud after using the mails to deprive investors of both money and the intangible right to honest services. The indictment tracks the statute's disjunctive language. The court holds that either form of deprivation satisfies the offense so the government need not prove loss of money or property once it establishes deprivation of honest services.
Deborah Dunn and others are prosecuted under the Smith Act for organizing a group that advocates overthrow of the government. The statute uses the disjunctive knowingly or willfully. The court reads the language to require specific intent to bring about overthrow as speedily as circumstances permit even though the text does not expressly state that element.
Devon Drake gives birth to a child conceived with an egg from another woman. The statute states that maternity may be established by proof of giving birth or by blood-test evidence. Because the statute is written in the disjunctive the court holds that either method independently suffices and therefore the gestational mother is the legal mother.
Dustin Donovan publishes a product review that Bose Corporation claims is false. The district court finds actual malice because the reviewer acted with knowledge of falsity or with reckless disregard. The appellate court treats the finding as disjunctive and examines each prong separately before deciding whether the evidence meets the clear-and-convincing standard.
Disjunctive language presents alternatives so that any one listed condition is sufficient. The Restatement applies this principle to future interests expressed with or and treats the primary beneficiary's interest as subject to an unrestricted condition of survival unless the instrument shows a different intent.
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A disjunctive test asks whether measures are preclusive or coercive. If either characteristic is present the measures are draconian and invalid even if the board believed the transaction served shareholders.
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Yes. When a statute prohibits conduct A or conduct B the government may obtain a conviction by proving either alternative. Courts therefore examine each prong independently rather than requiring proof of both.
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…given birth is a permitted method of establishing a mother and child relationship, although perhaps not the exclusive one. The disjunctive "or" indicates that blood test evidence, as prescribed in the Act, constitutes an alternative to proof of having given birth. It may be that the language of the Act merely reflects "the…