Definition
A disjunctive allegation is a pleading charge that uses an "or" construction to accuse a party of one of two (or more) possible acts, without specifying which act is actually relied upon. The flaw is in the ambiguity: because the pleading presents alternatives rather than a definite accusation, the opposing party — and the court — cannot determine with certainty what conduct is being charged or must be answered.
The classic form appears in criminal pleadings: charging that a defendant "murdered or caused to be murdered," "forged or caused to be forged," or "sold or caused to be sold." Each formulation leaves the accusation legally indeterminate. The problem is not that alternative acts are described — it is that the pleader has failed to commit to any one of them.
Common Confusion
Disjunctive allegations are sometimes confused with alternative pleading, which is a recognized and generally permissible practice in modern civil procedure. The distinction is important. Alternative pleading allows a party to advance multiple theories of liability or relief simultaneously — asserting, for example, that a contract was either breached or fraudulently induced — while still providing notice of each specific claim. Disjunctive allegations, by contrast, fail to give adequate notice of any single claim because the allegation itself is internally indeterminate. The vice of disjunctive allegations is uncertainty, not multiplicity. Modern rules permitting alternative pleading (such as Federal Rule of Civil Procedure 8(d)) did not rehabilitate disjunctive allegations in indictments and criminal informations, where the specificity requirement remains grounded in constitutional notice principles.
Core Elements
The defect of a disjunctive allegation has two components that courts have consistently identified:
1. Use of a disjunctive conjunction. The allegation employs "or" rather than "and" to connect alternative acts, leaving open which act is charged.
2. Resulting uncertainty as to the accusation. The pleading fails to identify, with sufficient certainty, what the party must defend against. The defendant cannot know whether to prepare a defense to act A, act B, or both.
Both elements must be present. A pleading that uses "or" in a context where only one legally cognizable act is actually described — or where surrounding language resolves the ambiguity — may survive challenge.
Why It Matters in Research
Researchers will encounter disjunctive allegations most frequently in materials on criminal pleading, particularly indictment practice from the eighteenth and nineteenth centuries. The doctrine was sharpest during the era when common law pleading demanded technical precision; an indictment with a disjunctive allegation was often held fatally defective, meaning a conviction obtained on it could be reversed.
The transition to code pleading in the mid-nineteenth century and then to modern notice pleading softened the rule considerably in civil practice, but the criminal side retained more of the common law rigor. When researching pre-twentieth century indictment cases, treat any "or" construction in the charging language as a potential flash point — courts of that era were far less tolerant of the ambiguity than modern courts.
Jurisdictional variation also affects how far this doctrine traveled. Some states codified specific rules about disjunctive indictment language in their criminal procedure statutes; others left it to case law development. Historical session law and annotated codes are the most reliable guides to where a given jurisdiction landed.
A secondary trap: statutes themselves are often written disjunctively (defining an offense as doing act A "or" act B). Courts have developed separate doctrine on whether an indictment tracking such statutory language is saved from the disjunctive allegation problem by the statute's own structure. That line of cases is distinct from the general pleading rule and requires separate attention.
Historical Dictionary Support
Bouvier and Rapalje & Lawrence are in substantial agreement on the core definition: both describe disjunctive allegations as charges framed in the alternative using a disjunctive conjunction, and both anchor the definition in indictment and criminal information practice. The shared examples — "murdered or caused to be murdered," "sold or caused to be sold" — reflect the standard common law illustrations that appeared across treatises of the period.
What neither source addresses is the evolution of the doctrine under code and notice pleading regimes, or the distinct modern question of how statutory disjunctives interact with charging instruments. Researchers relying solely on Bouvier or Rapalje for guidance on post-1850 practice will find the entries descriptive of the common law baseline but silent on how courts navigated the transition. Both entries also omit any treatment of civil pleading contexts, suggesting the doctrine was already understood as primarily a criminal law concern by the time these dictionaries were compiled.
The Rapalje & Lawrence entry as preserved in the source material appears to suffer a typographical collision with the adjacent entry for "Disorderly Persons," which partially obscures the closing text. The surviving portion is consistent with Bouvier on substance.
Jurisdictional Note
The rule against disjunctive allegations in criminal indictments remained robust in most American jurisdictions through the nineteenth century and into the twentieth. Modern federal practice is governed by Federal Rule of Criminal Procedure 7, which requires that an indictment be a "plain, concise, and definite written statement." State criminal procedure codes vary in how explicitly they codify the disjunctive allegation problem; several states permit charging in the language of the statute, which may effectively authorize what common law courts would have condemned.