Comments on: “Including Without Limitation” http://www.adamsdrafting.com/2007/04/02/including-without-limitation/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: AdamsDrafting » Blog Archive » Revisiting “Including” http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-95153 AdamsDrafting » Blog Archive » Revisiting “Including” Wed, 14 Apr 2010 00:06:22 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-95153 [...] more on including, see chapter 12 of MSCD or this April 2007 blog post. var addthis_language = [...] [...] more on including, see chapter 12 of MSCD or this April 2007 blog post. var addthis_language = [...]

]]> By: Robert Badner http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-94695 Robert Badner Tue, 19 Jan 2010 23:05:11 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-94695 I agree with Ben, and would extend my concern to “dimwitted judges.” Even if there are few cases holding that “including” alone is restrictive and not illustrative, and even if courts have either ignored “but not limited to” or “without limitation,” or not specifically held that adding one of these qualifying phrases makes “including” illustrative, it seems prudent to add one of these phrases (preferably “without limitation,” which is shorter) as long as there are cases lurking out there like Horse Cave State Bank, which Ken cites. The slight burden imposed on the reader (especially if the “without limitation” phrase is included in the drafting conventions) is more than outweighed by eliminating the risk (albeit minimal) posed to the client. I agree with Ben, and would extend my concern to “dimwitted judges.” Even if there are few cases holding that “including” alone is restrictive and not illustrative, and even if courts have either ignored “but not limited to” or “without limitation,” or not specifically held that adding one of these qualifying phrases makes “including” illustrative, it seems prudent to add one of these phrases (preferably “without limitation,” which is shorter) as long as there are cases lurking out there like Horse Cave State Bank, which Ken cites. The slight burden imposed on the reader (especially if the “without limitation” phrase is included in the drafting conventions) is more than outweighed by eliminating the risk (albeit minimal) posed to the client.

]]> By: AdamsDrafting » Blog Archive » “In Particular” http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-94650 AdamsDrafting » Blog Archive » “In Particular” Mon, 11 Jan 2010 19:50:15 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-94650 [...] the class in question something that’s lurking on the gray edges. (For more on including, see this April 2007 blog post.) That isn’t a meaning conveyed by in [...] [...] the class in question something that’s lurking on the gray edges. (For more on including, see this April 2007 blog post.) That isn’t a meaning conveyed by in [...]

]]> By: Without limitation « Dwell On It http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-93402 Without limitation « Dwell On It Mon, 26 Oct 2009 13:09:11 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-93402 [...] Update: Also check out Ken Adams who has pointed out his excellent article on the topic. [...] [...] Update: Also check out Ken Adams who has pointed out his excellent article on the topic. [...]

]]> By: Jason http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-92780 Jason Tue, 18 Aug 2009 08:24:51 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-92780 I just ran across an instance of including, with limitation, XXX. I could not determine if with limitation meant: 1) only 2) that XXX is included, but with limitations on what parts of XXX is included or 3) things that are limited, and XXX is one example of such things. Here's a with limitation example I grabbed from public files" " Tenant shall cause drawings and specifications to be prepared for, and shall cause to be performed, the construction of the alterations or additions in accordance with all applicable laws, ordinances and regulations of all duly constituted authorities, including, with limitation, Title III of the Americans with Disabilities Act of 1990, all regulations issued thereunder and the Accessibility Guidelines for Buildings and Facilities issued pursuant thereto, as the same are in effect on the date hereof and may be hereafter modified, amended or supplemented" Not sure if you've run across this, but it seems that there are a fair number of "with limitation" phrases in existence on Edgar. I just ran across an instance of including, with limitation, XXX.

I could not determine if with limitation meant:
1) only
2) that XXX is included, but with limitations on what parts of XXX is included or
3) things that are limited, and XXX is one example of such things.

Here’s a with limitation example I grabbed from public files”
”
Tenant shall cause drawings and specifications to be prepared for, and shall cause to be performed, the construction of the alterations or additions in accordance with all applicable laws, ordinances and regulations of all duly constituted authorities, including, with limitation, Title III of the Americans with Disabilities Act of 1990, all regulations issued thereunder and the Accessibility Guidelines for Buildings and Facilities issued pursuant thereto, as the same are in effect on the date hereof and may be hereafter modified, amended or supplemented”

Not sure if you’ve run across this, but it seems that there are a fair number of “with limitation” phrases in existence on Edgar.

]]> By: AdamsDrafting » Blog Archive » “For Example” http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-66067 AdamsDrafting » Blog Archive » “For Example” Tue, 30 Sep 2008 21:18:32 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-66067 [...] (My full analysis of including without limitation is at MSCD 12.100. A preliminary version can be found in this blog post.) [...] [...] (My full analysis of including without limitation is at MSCD 12.100. A preliminary version can be found in this blog post.) [...]

]]> By: Ben Horton http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-54239 Ben Horton Thu, 03 Jul 2008 15:00:46 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-54239 Although I agree with you that we should avoid redundancy and other useless prose, I shall continue to use "including without limitation." Unfortunately, not every lawyer thinks the same way as you. I believe that a competenent attorney should consider that a dimwitted opposing counsel may try to raise the restrictive definition of "including" argument. Do you think your client wants to spend the money to defend the position? Although I agree with you that we should avoid redundancy and other useless prose, I shall continue to use “including without limitation.”

Unfortunately, not every lawyer thinks the same way as you. I believe that a competenent attorney should consider that a dimwitted opposing counsel may try to raise the restrictive definition of “including” argument. Do you think your client wants to spend the money to defend the position?

]]> By: Vickie Pynchon http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-44245 Vickie Pynchon Fri, 29 Feb 2008 16:32:24 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-44245 Ken, I can't thank you enough for this analysis -- brilliant and thorough -- on an issue I spent two hours researching without result yesterday. This is a $2.5 million question for the client of a client, which just goes to show you two things: (1) transactional lawyers and litigators should be talking to one another more often; and, (2) there's NO place like the legal blogosphere to find the most highly sophisticated practical legal analysis available. If you ever need ADR or insurance coverage advice -- the latter my deepest specialty -- please pick up the phone and call me any time. Heck, if you ever need a favor in Los Angeles! just call out my name. Anything but my first grandchild. Mountains of gratitude, Vickie Ken,

I can’t thank you enough for this analysis — brilliant and thorough — on an issue I spent two hours researching without result yesterday.

This is a $2.5 million question for the client of a client, which just goes to show you two things: (1) transactional lawyers and litigators should be talking to one another more often; and, (2) there’s NO place like the legal blogosphere to find the most highly sophisticated practical legal analysis available.

If you ever need ADR or insurance coverage advice — the latter my deepest specialty — please pick up the phone and call me any time. Heck, if you ever need a favor in Los Angeles! just call out my name. Anything but my first grandchild.

Mountains of gratitude, Vickie

]]> By: Ken Adams http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-3258 Ken Adams Wed, 04 Apr 2007 19:56:46 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-3258 Peter: I mention this sort of provision in MSCD ¶ 11.4. I'm not much of a fan of provisions specifying drafting conventions, but this one is less objectionable than many. But I see two problems with it. First, it should be redundant, as it simply restates the everyday meaning of the verb <em>include</em>. And second and more significantly, any court that is willing to hold that <em>including</em> is restrictive even when <em>but not limited to</em> is added should also be willing to disregard this sort of provision. So like <em>including without limitation</em>, this sort of provision provides very uncertain protection against a very modest risk. That said, if you're drafting an agreement that contains a section specifying drafting conventions, then by all throw this one in. It wouldn't add much to the clutter. Ken Peter: I mention this sort of provision in MSCD ¶ 11.4. I’m not much of a fan of provisions specifying drafting conventions, but this one is less objectionable than many. But I see two problems with it. First, it should be redundant, as it simply restates the everyday meaning of the verb include. And second and more significantly, any court that is willing to hold that including is restrictive even when but not limited to is added should also be willing to disregard this sort of provision. So like including without limitation, this sort of provision provides very uncertain protection against a very modest risk. That said, if you’re drafting an agreement that contains a section specifying drafting conventions, then by all throw this one in. It wouldn’t add much to the clutter. Ken

]]> By: Peter Gulia http://www.adamsdrafting.com/2007/04/02/including-without-limitation/comment-page-1/#comment-3257 Peter Gulia Wed, 04 Apr 2007 19:45:48 +0000 http://www.adamsdrafting.com/2007/04/02/including-without-limitation/#comment-3257 Along with not using an illustration if it's not especially helpful, how about balancing the goals of uniform expression and avoiding clutter with protection against the risk that a judge interprets a phrase using one of the feared construction preferences by stating (only once, and preferably at the back of the agreement) the contracting parties' construction rule: n.n.n “Includes”, “including” A use of the word “includes” includes the phrase “but is not limited to”. A use of the word “including” includes the phrase “but not limited to”. Along with not using an illustration if it’s not especially helpful, how about balancing the goals of uniform expression and avoiding clutter with protection against the risk that a judge interprets a phrase using one of the feared construction preferences by stating (only once, and preferably at the back of the agreement) the contracting parties’ construction rule:

n.n.n “Includes”, “including”
A use of the word “includes” includes the phrase “but is not limited to”. A use of the word “including” includes the phrase “but not limited to”.

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