[Update: See also this follow-up blog post dated 14 September 2015.]
Thanks to @traduccionjurid, yesterday I learned of the following tweet by Bryan Garner:
Yes. Every contract should define "including" as meaning "including but not limited to." Then never use longer phr. https://t.co/Oyu44bcs8j
— Bryan A. Garner (@BryanAGarner) August 20, 2015
Garner is in a class of his own as a legal lexicographer. And Garner’s Modern American Usage is what I consult first when I have a question on general English usage. But as an authority on contract drafting, he’s a great lexicographer.
For example, there’s his confused explanation of why it’s better to use will instead of shall. I discuss that in MSCD 3.65—69 and this post.
And there’s also his advice on efforts provisions, which I discuss in this post. I could go on.
Garner’s tweet on including but not limited to is more of the same.
Yes, it’s not clear whether a court will hold that a given instance of including is illustrative or restrictive. That’s because drafters used including both ways. So it’s now standard practice for drafters to use the phrases including without limitation and including but not limited to (and their equivalents using includes) with the aim of making it clear that the unrestricted meaning applies. And caselaw offers a measure of support.
But there are two problems with using this approach to make it clear that the unrestricted meaning applies.
First, given that the illustrative meaning of including and includes is the primary meaning, in most circumstances the extra verbiage would be redundant. It follows that for drafters, it’s a nuisance to have to tack on the extra verbiage every time you use including or includes, and for the reader it’s annoying to encounter at every turn. Using the provision that Garner recommends (it’s an example of what I now propose to call internal rules of interpretation—see the note at the bottom of this post) would allow you to eliminate much of the clutter, but in effect you would still be applying by rote extra language that would be redundant in most contexts.
And second, courts have proved willing to hold that including or includes is restrictive even when so modified. So you can’t assume that either the extra verbiage or an internal rule of interpretation would ensure that a court attributes an illustrative meaning to including or includes.
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, a court could conclude that such phrases are essentially meaningless. It could equally conclude that the related internal rule of interpretation is meaningless too.
Instead of relying on but not limited to or without limitation to purge a contract of confusion relating to use of including, it would instead be far better to be disciplined in how you use including, so you don’t create confusion. But the first step to avoiding uncertainty over including or includes is to select with care the general word that precedes including or includes. The more specific you make it, the less mischief including or includes can cause. And you might be able to do without them entirely. For more on how to avoid confusion caused by including, see MSCD 13.279—88.
My article on represents and warrants closes with a discussion of active drafting versus passive drafting. (Go here for that part.) Active drafting involves addressing confusion at the source, instead of hoping, based on “obscurantist rationalizations,” that you win fights caused by that confusion.
In the article, I associate Garner with passive drafting. His tweet on including but not limited to bolsters that association.
In this post I refer to “internal rules of interpretation.” I use the word “internal” to make it clear that I’m referring to rules in a contract and not rules of interpretation that courts invoke. In MSCD I use the term “provisions specifying drafting conventions,” but the tenacious A. Wright Burke, M. Phil., has convinced me that it has little to recommend it. Let us speak of it no more!