[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 his explanation of the phrase represents and warrants. I mention it in this post, but I discuss in my recent article on the subject (here) why his analysis doesn’t make sense.
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!
I’ve made it my practice not to use ‘including’, and it works pretty well.
Saying ‘fruit, including by way of illustration and not of limitation, lemons, limes, and grapefruit’ sets up two problems: limitation and ejusdem generis, each much discussed elsewhere on this fine blog.
Both problems are avoided by the formulation ‘lemons, limes, grapefruit, and all similar and dissimilar fruit’.
One’s aversion to the hissy sound of ‘similar and dissimilar’ is soon overcome by the bliss of clear exactness.
If you want to refer to “fruit”, why not just say “fruit”? I don’t know what “lemons, limes, grapefruit, and all similar and dissimilar” adds.
Probably a better example is something like this: “fruit means the edible part of a plant that grows from a flower, including, but not limited to tomatoes, pumpkins, …” Tomatoes are technically fruit, but most people think of them as vegetables, so there’s some ambiguity.
This would become something like tomatoes, pumpkins, etc, and other similar or dissimilar fruit.
I also wrote an article about this and came up with the same basic advice as Adams: Most of the time, courts interpret “including” to not be restrictive. But when they want to interpret “including” as restrictive, they aren’t deterred by “but not limited to”. So the phrase rarely does much.
After writing the article, an editor asked me “Why don’t you just say ‘such as’?” And I didn’t have a good answer, so I now use “such as” when it works. In the example, I might write, “Fruit means the edible part of a plant that grows from a flower, such as tomatoes, pumpkins, …”
Adams, do you have any thoughts on that?
Agreed regarding your first point. But such as is a no-no. See this post: https://www.adamsdrafting.com/such-as/.
So it suffers from the same defect. I’ll have to think about that
more. At the time I thought it was unfortunate, but now I’m glad that “such as” rarely seemed to actually work as a solution.
My problem with A Wright Burke’s advice is that the use of lists within a rule itself frequently causes bigger interpretation problems. I generally avoid lists because of the last antecedent issue. It’s very hard to include a list into a test without inducing ambiguity.
I think we’ve discussed this before. Here’s your article about it: https://www.adamsdrafting.com/my-bamboozled-by-a-comma-article-is-now-in-print/
And here’s my article about it: http://www.ncsl.org/Portals/1/Documents/lsss/LegLawyer_LastAntedent.pdf
So sometimes it can be done, but my underlying tendency is to avoid the list altogether. This may be where using a definition can really help.
No argument. But if you have to include a list, A. Wright Burke’s suggestion is consistent with mine.
That’s exactly the point. Problems with including can be avoiding if you don’t use it to list obvious members of the class but instead use it just to bring within the class stuff lurking at the gray edges.
But sometimes you have to list obvious members of the class, because of client nervousness. If that’s the case, then a formula such as that offered by A. Wright Burke is what I’d use.