[Go here for my most recent post on this subject, from 2016.]
This blog has revisited sporadically topics that I’ve decided aren’t covered adequately in MSCD. Here’s another one—the verb include.
Illustrative Versus Restrictive
Including and includes have traditionally been used to introduce a nonexhaustive list. Here’s how Black’s Law Dictionary defines include: “To contain as a part of something. The participle including typically indicates a partial list (the plaintiff asserted five tort claims, including slander and libel).”
Nevertheless, some courts have, in two different ways, used the list following a given including or includes to limit the meaning of the word or phrase (usually a noun or noun phrase) preceding the including or includes.
First, some courts have held that an item only falls within the preceding noun if it falls within one of the items in the list. The thinking is that if the preceding noun were being used to convey its unrestricted meaning, referring to subcategories of that word would serve no purpose. See, e.g., Application of Central Airlines, 185 P.2d 919 (Okla. 1947) (holding, with respect to use of the word including, that “if the lawmakers had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes”).
Second, some courts have held that something only falls within the preceding noun if it’s of the same type as one or more items on the list. See, e.g., Horse Cave State Bank v. Nolin Production Credit Ass’n, 672 S.W.2d 66 (Ky. Ct. App. 1984) (“[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)).
The willingness of courts to use including or includes to restrict the meaning of a preceding noun has prompted perhaps a majority of drafters to resort to the phrases including without limitation and including but not limited to (and their equivalents using includes). The aim is to make it clear that the unrestricted meaning applies. To give you an indication of how extensive this practice is, in the last week of March 2007 1,141 contracts containing the word including were filed on the SEC’s EDGAR database as Exhibit 10 “material contracts”; of those, 814 contained at least one instance of including without limitation or including but not limited to. (Of course, any one or more of those 814 contracts might contain a mixture of usages.)
There are three problems with using including without limitation and including but not limited to (and their equivalents using includes) to make it clear that the unrestricted meaning applies.
Paucity of Cases Holding That “Including” Is Restrictive
First, recent cases in which the verb include is given a restrictive meaning are few and far between. More common are cases such as DIRECTV, Inc. v. Crespin, 2007 U.S. App. Lexis 6279 (10th Cir. Mar. 16, 2007) (referring to “the normal use of ‘include’ as introducing an illustrative—and non-exclusive—list”). See also People v. Perry, 2007 WL 495285 (Feb. 16, 2007 Ill.) (relying in part on “the plain and ordinary meaning” of the word includes in holding that the absence of additional verbiage such as but not limited to did not preclude the following list from being illustrative); Auer v. Commonwealth, 621 S.E.2d 140 (Va. Ct. App. 2005) (“Generally speaking, the word ‘include’ implies that the provided list of parts or components is not exhaustive and, thus, not exclusive.”)
Presumably it is the everyday meaning of the verb include, plus the paucity of cases giving a restrictive meaning to it, that allows Black’s Law Dictionary to conclude that phrases such as including without limitation and including but not limited to “mean the same thing” as including.
(Incidentally, many cases hold that including (or includes) is a term of enlargement, not of limitation. “Enlargement” presumably refers to the practice of using including or includes so as to bring within the scope of the preceding noun something that would normally be excluded, as in “Motorcycle” includes any bicycle powered by an electric motor. But courts trot out the enlargement-not-limitation mantra even when including or includes is used to introduce an illustrative list that doesn’t seek to enlarge the meaning of the preceding noun. For our purposes, however, all that matters is that cases that hold that including or includes is a term of enlargement necessarily do not stand for the proposition that either term has a restrictive meaning.)
Weak Case Law Holding That “But Not Limited To” Makes “Including” Illustrative
Second, there’s little in the way of case law holding that adding without limitation or but not limited to to including would render including illustrative rather than restrictive. Although there are doubtless other cases out there, in an online search I only found two cases on point.
In Leach v. State, 170 S.W.3d 669 (Tex. App. 2005), the court held as follows:
We cannot agree with [the appellant’s] contention that “the administrative agency charged with supervising offenders and implementing a child safety zone believed that the words ‘includes’ and ‘including’ are terms of limitation” because the definition of “child safety zone” in the document uses the phrase “but not limited to” after the term “including.”
But the court then went on to undercut the significance of but not limited to by citing a number of cases standing for the proposition that including without but not limited to isn’t restrictive.
In Jackson v. Concord Co., 253 A.2d 793 (N.J. 1969), the court held that terms like include are “words of enlargement and not of limitation and that examples specified thereafter are merely illustrative.” It went on to note that “[t]his is especially so here where the word ‘including’ is followed by the phrase ‘but not limited to.’” But attributing significance to “especially” would seem at odds with the court’s flat assertion that including is illustrative.
So as authority for the proposition that but not limited to serves to turn a restrictive including into an illustrative including, these cases are weak.
Cases Disregarding “But Not Limited To” in Holding That “Including” Is Restrictive
And third, some courts have held that including is restrictive even when but not limited to is added.
In one relatively recent case, Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832 (7th Cir. 2002), the court disregarded the phrase but not limited to in holding that an item only falls within the preceding noun if it falls within one of the items in the list following including:
[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 surplussage.
And at least one court has held that despite presence of the phrase but not limited to, to fall within the preceding noun an item must be of the same type as one of the items following including. See In re Clark, 910 A.2d 1198 (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.”).
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 intent of the parties. In the process, it could well elect to disregard any drafting that it regards as not going to the intent of the parties. Given that many drafters automatically add but not limited to or without limitation to each instance of including, a court could conclude that such phrases have no bearing on the intent of the parties.
Cutting Back on Use of Illustrative Lists
If you’re worried that a court might go against the tide and hold that including or includes is restrictive, you could reduce that risk by reducing the number of illustrative lists you include in a contract. (Reader John Fitzpatrick suggested as much in a comment to this post.) When you’re contemplating adding an illustrative list, ask yourself whether you’re adding clarity or merely stating the obvious.
The everyday meaning of including is such that including without limitation and including but not limited to mean the same thing as including. When considered as a whole, more often than not U.S. courts go with the everyday meaning of a word. That’s why most courts that have recently considered the meaning of including have held that including doesn’t convey a restrictive meaning.
One could nevertheless continue to tack on without limitation or but not limited to, just to fend off courts that might be inclined to go against the tide and give including a restrictive meaning. For the following reasons, I recommend that you not do so:
- the risk involved is a very modest one;
- the protection afforded is highly uncertain, given that you can’t rely on a court to pay any attention to without limitation or but not limited to;
- these phrases are redundant and confusing, given the everyday meaning of the verb include; and
- they render contract prose more ponderous.
Whereas I’ve limited my research to U.S. case law, I’d expect my conclusions to apply in other jurisdictions.
I’ll be doing further research on this issue, and I may well adjust my analysis. Meanwhile, I’d be pleased to receive comments.