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.
An aside: kudos to you for using the form ‘dictum’ to mean ‘opinion unrelated to how the case was decided’. I regret the trend to use the plural ‘dicta’ for the collective meaning, presumably by analogy to ‘data’, a ship that sailed long ago.
Thanks for the analysis. I’m the one who sent him the Shelby case. I discovered it while researching my including article. So it’s nice to see a good rebuttal.
Ah, I just found your including article. I’ll check it out.
The more we massage this issue, the more I am convinced that a careful drafter will eschew any use of either ‘including’ or ‘including without limitation’ (or the latter’s many variants) unless the term is defined to preclude ambiguity, and by that I don’t mean defining ‘including’ to mean ‘including without limitation’.
‘Including’ and ‘including without limitation’ can mean (1) ‘including only’; (2) ‘including at least the following and possibly more’; (3) ‘including the following and definitely more’; (4) ‘including the following, which describe and limit the nature of the underlying genus’ [ejusdem generis]; and (5) ‘including the following, which do not describe or limit the nature of the underlying genus’.
The fact that ‘including’ and ‘including without limitation’ are generally, normally, typically, or usually understood in senses (2), (3), (5), or some combination, shouldn’t be good enough for a careful drafter.
For reasons Ken has patiently and repeatedly laid out, adding the words ‘without limitation’ or the like to ‘including’ does not solve the problem; it does not signal unmistakeably which of the several possible meanings applies.
MSCD’s proposed solution is ‘the disciplined use of “including”‘. I’m still chewing it over.
Two other solutions are (A) getting rid of ‘including’ and (B) defining it unmistakeably.
(A) Getting rid of it means not using ‘fruit, including tomatoes’ but rather ‘tomatoes and all other similar and dissimilar fruit’. No ambiguity.
(B) Defining it unmistakeably means saying ‘fruit, including tomatoes’, but defining ‘including’ along these lines:
In this contract, *including* means *including non-exhaustively and without ejusdem generis effect. For example, ‘fruit, including tomatoes’ means ‘tomatoes and all similar and dissimilar fruit’.*
As between solutions (A) and (B), (A) is more direct and solves the problem ‘on site’ wherever it arises, but (B) gives the advantage of new-fangled clarity and precision while using the old familiar wineskin of ‘including’.
As for the vice of kitchen sink lists, it’s bad for two reasons of different degrees of importance: it’s sloppy and undisiplined, and it muddies the meaning of the provision. The latter is more important and is completely solved by technique (A) or (B) above, leaving just the less important fight over tidiness.
AWB’s comments remind me that English case law in this area includes cases where the phrase at issue was (in effect) tomatoes and any other fruit whatsoever. According to the older case law, ‘whatsoever’ (or, more modishly, whatever) serves exactly the same function as ‘without limitation’. But, in my view, both formulas (and, for that matter, ‘similar or dissimilar’) have the same whiff of non-intuitive, legal magic wordery.
You put waaaaay too much faith in, uh, internal rules of interpretation. For one thing, there’s the notion that unless you’re dealing with defined terms, contract language should speak for itself. But a more practical issue is that drafters gonna use including however they jolly well please, and applying a rule of interpretation by rote is a weak post hoc band-aid. In a copy-and-paste world, there’s no basis for assuming that a drafter had a given rule in mind when using including.
And your proposed rule is weird, with the tail (“tomatoes”) wagging the dog.
Ken: ‘Tomatoes and all other fruit’ is no ‘weirder’ a way to say ‘all fruit’ than ‘oranges, lemons, grapefruit, and other fruit, whether or not citrus’ (MSCD 13.288).
Both prevent the illustrative words from having a restrictive effect on the general word.
At the abstract level, isn’t the problem presented by ‘including without limitation’ really this:
Is there any generally applicable drafting formula that makes clear beyond doubt that illustrative words belong to a general category but have no restrictive effect on the general category?
I understand your answer to be ‘no’ and your reason to be that a drafter who uses illustrative words that obviously belong to the general category creates ambiguity, and in resolving such ambiguity, a court may disregard formulae in its search for the parties’ intent. Fair? -Wright
I offer that MSCD example for those situations when the contract party in question feels that it has to list the obvious examples. In the “tomatoes” example, we’re dealing with a single non-obvious example. Different.
And I’m comfortable with using the approach in that MSCD example to express more clearly what people would like including but not limited to to express. I’m also comfortable with Fruit, including tomatoes. So I don’t think my answer is “No.”
I don’t see the difference between the MSCD example above, “including”, and “including but not limited to” – they are all variations of using general language and then listing specific examples. Once you lose the fight over the listing of specific examples (and your client will make sure you lose that fight), all you can do is minimize the damage by having clear language. So if it’s not clear what “including” means, just define it and be done with it. Right?
Ken, this is one of the areas where you and MSCD really provide an invaluable service. After reading this post, I’m revising the Common Draft definition of including to state that including and similar terms are meant to “signal the parties’ intent that the listed item(s) should not be construed as limiting under the principle of ejusdem generis”; in the commentary I’m adding a link to this post. (Any suggestions on how to make this even more explicit and clear will be welcomed, and acknowledged.)
After reading the cases you cited — and Garner’s posts — in more detail, I think overall Garner has the better view of the cases, but I’m keeping the revisions described above to the Common Draft definition of including; thanks again.
That comes as no surprise, as you disagree with me on many things. But there’s not a lot I can do with “you’re wrong.”
D.C.’s Common Draft definition of ‘including’ has a phrase new to me: ‘whether or not capitalized’.
It seems useful, perhaps also when ‘notify’ is a defined term.
Normally defined terms are nitcapped (given an initial capital letter, distinguished from ‘allcapped’) to signal to the reader that the terms are in fact defined, but words like ‘including’ and ‘notify’ look odd when nitcapped.
Of course, there are always workarounds, like banning ‘including’ altogether (a good idea) and using ‘give Notice to’ instead of ‘Notify’.
And the MSCD recommendation for the disciplined use of ‘including’ requires no definition, hence no nitcap.
Any thoughts on possible exceptions to nitcaps for defined terms, Ken?
After all, there’s not generally any on-site signal that a usage is subject to a non-definitional internal rule of interpretation.
So would it be a catastrophe if some defined terms lacked an on-site typographical signal (nitcaps) that they are defined terms?
Clearly, I’m going to have to go find my copy of MSCD and look at how Ken deals with “include”. I’ve always taken the approach of it being a non-exhaustive definition and if one wanted to create an exhaustive definition, one would use the word “means”.