In this recent post I wrote about a Bryan Garner tweet on the subject of including but not limited to. Shortly after, Garner posted “LawProse Lesson #226” on the same subject. Since his post offers more detail than did his tweet, I thought I should check it out, but I found that it reflects his unhelpful approach to contract language. Let me explain.
Courts and Including But Not Limited To
In my post I say that courts have proved willing to consider that including or includes is restrictive even when modified by but not limited to. Here’s what Garner says about that:
Will judges take such a definition seriously? Generally, yes. I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive listing.
Well, one such case is Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832 (7th Cir. 2002). In that case, the court had to interpret a description of collateral that read in part as follows: “All inventory, including but not limited to agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor by Van Diest Supply Co.” Here’s what the court said regarding including but not limited to:
[I]t would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole. This is not to say that there is no use for descriptive clauses of inclusion, so as to make clear the kind of entities that ought to be included. But if all goods of any kind are to be included, why mention only a few? A court required to give “reasonable and effective meaning to all terms” must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage. [Citations omitted.]
In a follow-up post, “LawProse Lesson #227,” Garner disqualifies Van Diest Supply Co., saying that “the court couldn’t decide whether the phrase was exhaustive or not, so it doesn’t quite meet the challenge.” That’s disingenuous hair-splitting—the court held that the broader language at issue was ambiguous, so the quoted language is dictum (opinion unrelated to how the case was decided), but it’s clear that the court was not inclined to interpret but not limited to as Garner would have wished.
But if Van Diest Supply Co. isn’t enough, here’s MSCD 12.276–77 on two other cases:
And in Horse Cave State Bank v. Nolin Production Credit Ass’n, 672 S.W.2d 66 (Ky. Ct. App. 1984), the court held that a list following “including but not limited to” served to limit the scope of the preceding noun phrase:
[Appellee’s] description does not merely state that it covers ‘all farm machinery’ without more. Rather, the description includes the qualifying language ‘including but not limited to tractor, plow, and disc.’ The qualifying language gave appellant and other persons notice that [appellee’s] financing statement was intended to cover any tractor, plow, and disc owned by the debtor as well as all similar farm machinery.” [Emphasis added.]
See also In re Clark, 910 A.2d 1198, 1200 (N.H. 2006) (“When the legislature uses the phrase ‘including, but not limited to’ in a statute, the application of that statute is limited to the types of items therein particularized.”).
It’s irrelevant that all three cases didn’t concern a definition: if a court is unimpressed by including but not limited to, it follows that it would be equally unimpressed by a definition to that effect.
So I suggest that Garner’s challenge has been met. It follows that but not limited to isn’t as immune to attack as he would like us to think.
Say No to Robodrafting
Garner hedges his bets by preemptively brushing off any caselaw that’s inconsistent with his recommendation:
Of course, if a judge is going to override an interpretive direction so offhandedly, there’s no help for it. Willful, result-oriented judges who don’t take governing texts seriously cannot be reined in with skillful drafting.
There are two problems with that assertion. The first is that it would in fact be legitimate for a court to ignore but not limited to. Here’s what MSCD 13.278 says:
That some courts disregard but not limited to shouldn’t come as a surprise. A court handling a contract dispute will want to determine the meaning intended by the drafter. In the process, it might elect to disregard any language that has no bearing on that. Given that it’s routine for drafters reflexively to add without limitation or but not limited to to each instance of including (and without limitation or but is not limited to to each instance of includes), a court could conclude that such phrases are essentially meaningless.
In other words, seeking to apply a corrective gloss by rote to a problematic usage, regardless of the context of individual contracts, is an inherently unpromising approach. I think of it as “robodrafting.”
Active Drafting, Not Passive
The second problem with Garner’s reaction to the prospect of judges ignoring but not limited to is that relying on a dubious fix, then shrugging your shoulders and saying “there’s no help for it” is to abdicate the power and responsibility that comes with drafting or reviewing a contract.
In that regard, Garner buries the lede:
Then there’s the matter of ensuring that the genus term preceding including is the right one; that the examples following including are truly useful to a later interpreter of the instrument; and that the entire provision has been written as precisely and readably as possible.
If you engage in what I call “active drafting” and you are careful in choosing your general words and are disciplined in your use of including, you don’t need to rely on the flimsy crutch that is but not limited to. And you don’t need to put yourself at the mercy of judges. For more on how to avoid confusion caused by including, see MSCD 13.279—88. And for more on active drafting versus passive drafting, go here for an extract from one of my recent articles.
More of the Same
As the links in my previous post indicate, Garner’s thoughts on including but not limited to are representative of his commentary on contract language generally. It’s as if Garner stopped thinking about contract language twenty years ago and assumes that everyone else has stood still too.