“Limitation”

There’s always something that needs fixing.

Yesterday, I was inclined to carve on my forehead, in mirror-script, “Stop using limitation instead of limit!”

Consider the following from Garner’s Modern American Usage:

limit; limitation. A limit is whatever marks an end to something, as in city limits or speed limit. A limitation is the extent of one’s capacity or a constraint that voids, as in physical limitations or statute of limitations.

I think that the “constraint that voids” definition is murky. Using statute of limitations as the example doesn’t help: it’s a centuries-old legal term of art, so it’s not clear what bearing it has on standard usage.

I suggest that the following random online offering (here) expresses the distinction more clearly:

Limit means boundary.

Limitation means restriction or inability.

Sample Usage

Limit
1. This is the limit of his land.
2. There was no limit to her ambition.
3. We must put a limit on our spending.
4. We must limit the amount of time we spend on this work.

Limitation
1. His limitations are many.
2. We all have our limitations.
3. It is a good plan but it has serious limitations.

What implications does this have for contract prose? Well, I just made the following changes in a draft:

Additional Limitation on Liquidated Damages. In addition to the limits stated in …

Subject to the limitations on remedies stated in …

Time Limitations. If the Closing occurs, the Seller will not be liable …

Limitation of Liability. Subject to …

Regarding the last example, Limited Liability isn’t an option: it’s a term of art relating to one’s liability as an investor in a company, so I wouldn’t use it to convey a more general meaning.

Obviously, I would leave statute of limitations well enough alone.

What say you?

Posted in Selected Usages | 13 Comments

  • Mark Anderson

    Ken, I agree with your comments. My sense is that limitation has another usage, which is something like “the act of limiting”.

    • http://www.adamsdrafting.com/ Ken Adams

      To convey the meaning “the act of limiting” (as opposed to “shortcoming”), I’d use “limiting” by itself.

      • Mark Anderson

        Agreed. This may be a point of US English usage. Eg US-ers say transportation, where UK-ers say transport.

        • In House Attorney

          Ken,

          Long time fan of the blog, first time commenter. I
          usually agree with much of your prose, and while I agree with the premise and differences specified between Limit and Limitation, I respectfully dispute the application of the distinction at the end of this post.

          I think I agree with Mark, assuming I am getting at the same thing he is getting at

          I think the LIMIT is the actual cut off point, the
          boundary itself. The LIMITATION or constriction, though, can be a reference to or application of the existence of a LIMIT.

          For example, let me use your last example — limit/limitation of liability. Here, there may be a specific LIMIT on liability specified in the paragraph. However, the section that sets forth the limit itself is a restriction; ie an application of a specific limit. Thus, while I think it is appropriate to say, for example, the speed LIMIT is 60 MPH, I do not think it is incorrect to say that the statute setting forth the limit is a LIMITATION, and therefore a label of “LIMITATION OF SPEED ON HIGHWAYS” would be wrong or warranting of correction (putting aside the poor name for the section, which could admittedly be more concise if I had time to think of a better example).

          What do you think>

          • http://www.adamsdrafting.com/ Ken Adams

            After revisiting this topic, I agree with your distinction, but I still think “limitation” is a clunky abstract noun that is best avoiding. I’m now experimenting with “Limiting Liability” as a section heading.

  • http://rickcolosimo.com Rick Colosimo

    And as a bonus, you save five letters each time.

  • AWrightBurkeMPhil

    When you place a high priority on brevity in contract language, one rule of thumb is “never use a longer word when a shorter will do.”

    What will “do” is a matter of balance and judgment, of course, but shorter words are better even if they lack what Bryan Garner calls the “connotative nuances” of the longer word, unless those nuances are essential.

    So, “limit” always, “limitation” never.

    In all the examples in the post, “limit” will not be misunderstood, so “limitation” is a needless variant.

    Similarly, “duty” always, “obligation” never.

    But since “duty” has no verb form, “oblige” always, “obligate” never, and “obliged” always, “obligated” never.

    And, MSCD 3.221 to the contrary notwithstanding, “need not” always, and “is not required to” never.

    “Need” will never be used positively as a verb — the disciplined use of “shall” covers that field. The disciplined use of “need not” will rescue that obscure phrase for useful work in drafting contracts. As a bonus, it’s uninflected, like “shall” and “must.”

    Humble suggestion: make “lack of duty” its own category of contract language, complementing language of duty and language of prohibition. But that’s grist for another post.

  • Westmorlandia

    I agree on all the principles, and “time limitations” in particular will surely be wrong in most cases.
    However, I will raise a dissenting voice on the example of “limit of liability” – I think such a clause is usually correctly (and better) described as a “limitation”. This usage corresponds to the “restriction” and “constraint that voids” meanings of “limitation” – such a clause would also correctly be described as a “restriction” or “constraint” on liability. However, it does not (usually) set a certain boundary on the amount of liability, so it seems less appropriate to describe it as a limit.
    A limitation clause could conceivably create a limit on damages (most obviously a liability cap), in which case it could correctly be described as a limit, but it usually won’t. For example, if consequential damages are excluded, the direct damages could still be unlimited. In that case there is a limitation (a rule that restricts liability), but no limit (a boundary to the amount that could be owed). This is how I understand the terms, but I think this distinction is also consistent with the way that the terms are defined by others, as quoted above, so I won’t accept that this is just my personal view.
    As an aside, I don’t think that the examples quoted from the “Using English” forum cover the extent of meaning of “limitation”, even by reference to the defintions quoted by the same contributor (specifically “restriction”).

    • AWrightBurkeMPhil

      If you allow the metaphorical use of “limit” to mark the metaphorical “boundary” between amounts of damages (as in a liability cap), what’s the objection to using “limit” to mark the metaphorical “boundary” between types of damages (as between included direct damages and excluded consequential damages)?

      Both nouns have the same verb form (“limit”), and we get along without the verb “limitate,” so there can’t be much sunlight between the meaning of the two nouns, at least in contracts.

      I haven’t been able to think of an instance (except possibly “statute of limitations”) where the consistent use of “limit” and the rejection of “limitation” will cause any genuine uncertainty in the meaning of a contract provision.

      But I have my limitations.

      • Westmorlandia

        That isn’t quite the point. There is a “limit” between allowed damages and non-allowed damages, but the clause itself is still a limitation. Indeed, a liability cap is a limitation as well as a limit.
        One can pick apart the definitions of words endlessly, and go insane in doing so, but ultimately there is usually a more natural way of expressing the idea. In this case I think it is “limitation of/on liability”, because that refers to the rule rather than the boundary itself, and that is usually how people think of the clause.

        • AWrightBurkeMPhil

          Puzzled by “a liability cap is a limitation as well as a limit.” I get that the description is not the thing described, and that a provision for a cap is not the same thing as the cap itself. Are you saying that the phrase “liability cap” (1) sometimes refers to the provision creating the cap, and in that sense is properly called a “limitation,” and (2) sometimes refers to the cap the provision creates, and in that sense is properly called a “limit”?

          • Westmorlandia

            Hopefully this is a clearer way to explain it – if we have an clause that says “Party A’s liability will not exceed $1 million”, then (i) the limit is $1 million and (ii) the limitation is that Party A’s liability will not exceed $1 million.

            So there is both a limit and a limitation, though they are not quite the same thing.

            If we have a clause that says “Party A will not be liable for any consequential loss”, then the limitation is that Party A will not be liable for any consequential loss. There is, arguably, a limit somewhere in there as well, but it is hard to spot and express. Arguably it doesn’t exist until a breach has occurred. For that reason, I think “limitation on liability” is a better phrase for these kinds of clauses.
            I know it’s a longer word, but I still think it is the mot juste in this case.

          • Slaton Anthony

            I would suggest that the Limit or Limitation of Liability is really a difference of perspective. Consider that in most circumstances you have performance and benefit compensated for in most contracts. Therefore, to the performed, the liability clause is a “limit” by which that parties liability can not exceed beyond. However, to the beneficiary who will be harmed if performance is not contractually satisfactory, the liability clause is a “restriction” which restricts the amount of damages that may be sought. So, for me, as a contract manager negotiating major contracts with suppliers, it will remain a limitation of liability because I always want to place focus of this clause, if more than limiting unforeseeable (Thanks for that practice tip Ken!) damages on the reality it is placing a restriction on a customer by a seller.