A reader asked me about excluding without limitation. Yes, it’s a thing, unfortunately, or at least enough of a thing to prompt me to look into it. It occurs in 55 contracts filed on the SEC’s EDGAR system in the past year. I’ve included at the bottom of this post extracts from some of those contracts.
I don’t understand excluding without limitation. If a contract says, “Acme shall purchase from Widgetco, and Widgetco shall sell to Acme, Widgetco’s fruit inventory, excluding without limitation the apples,” what am I meant to conclude from excluding without limitation? That other stuff might be excluded? What other stuff?
Can anyone enlighten me?
You’ll notice that the extracts are full of bloated traditional legalese. With all that muck to wade through, the drafters probably didn’t get around to thinking about excluding without limitation.
By the way, excluding but not limited to occurred in only two contracts filed on EDGAR in the past year. Obviously, any conclusion regarding one phrase applies to the other.
***
Here are the extracts:
… or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (excluding, without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional equity securities of the Company or the payment of cash by the Company , or …
and agrees to cause each of its sublicensees to agree and covenant not to sue any Indemnified Person in connection with) any injury, loss, or damage of any kind or nature, sustained by, or any damage assessed or asserted against, or any other liability incurred by or imposed upon, Licensee, any of its sublicensees or any other person or Entity, whether direct, indirect, special, punitive, incidental, consequential or otherwise arising under any legal theory (and further excluding without limitation any existing or anticipated profits or opportunities for profits lost by Licensee or any sublicensee) arising out of or in connection with or resulting from …
Losses means all losses, damages, Costs, expenses, fines, penalties, charges and other liabilities (including in respect of Tax) whether present or future, fixed or unascertained, actual or contingent, but excluding, without limitation, any indirect or consequential losses, loss of profit, loss of earning, loss of opportunity and any punitive or aggravated damages; …
In the event that any portion of the Premises constituting at least one (1) full floor of the Building or greater (the “Untenantable Casualty Space”) is rendered wholly untenantable due to fire or other casualty and Landlord has not substantially restored the core and shell of the Untenantable Casualty Space and access thereto excluding, without limitation, any alterations, improvements or betterments installed by Tenant in and to the Untenantable Casualty Space and any personal property, within one hundred and eighty (180) days after such fire or casualty subject to causes beyond the reasonable control of Landlord then, and in such event, Tenant may elect to cancel this Lease only and to the extent that it pertains to the Untenantable Casualty Space …
“Indebtedness” means (without duplication), with respect to any Person , any indebtedness at any time outstanding , secured or unsecured, contingent or otherwise, which is for borrowed money (regardless of whether the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments or representing the balance deferred and unpaid of the purchase price of any property (excluding, without limitation, any balances that constitute accounts payable or trade payables, and other accrued liabilities arising in the ordinary course of business) if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet (excluding Notes ) of such Person prepared in accordance with GAAP , and shall also include, to the extent not otherwise included: …
Interpreting the phrase ‘excluding without limitation’ is easy in a vacuum. You got it just right–other stuff may also be excluded.
The phrase envisions (1) a set of items (set A); (2) *listed* items not in set A; and (3) the possibility of *unlisted* items not in set A.
‘Excluding without limitation’ doesn’t make clear (1) whether the listed items excluded from set A are the *only* excluded ones (exhaustion issue), or (2) whether unlisted items not in set A (if any) are *like* the listed ones (ejusdem generis issue).
A drafter could deal with those uncertainties by saying whichever of the following applies:
(1) ‘Set A with *only* the following exceptions’;
(2) ‘Set A with the following exceptions and [possibly] other, *similar* exceptions’;
(3) ‘Set A with the following exceptions and [possibly] other, “dissimilar* exceptions’;
(4) ‘Set A with the following exceptions and [possibly] other *similar or dissimilar* exceptions’.
The actual specimens from the great manure lagoon I found indecipherable in the time available.
I think you’re trying to hard. It’s generally accepted that including precedes an illustrative list. No analogous meaning exists in the case of excluding: there’s no connotation that other stuff might be excluded too. It the result of misapplication of verbiage in a context where it cannot make sense.
Regarding a license agreement that identified specific articles as “Licensed Products,” the contract contained a provision carving out certain items that could have otherwise conceivably been construed as Licensed Products. The carve-out provision stated “Licensed Products specifically excludes, without limitation, [xyz].” I asked the attorney who drafted it what he meant, and he confidently replied that he was clarifying that the Licensed Products also exclude everything else that isn’t specifically listed as a Licensed Product.
That “clarification” is unnecessary at best (and never mind that the phrase “specifically excludes” appeared elsewhere in the contract without the “without limitation” qualifier, creating a potentially dangerous ambiguity), but the use was at least rational (I think).
I’m not sure redundant is rational. It’s like saying “Widgets exclude anything that isn’t a widget.” If it’s clear what “Widget” means, the rest is unnecessary. If it’s not clear what “Widget” means, the rest isn’t going to help. Does that make sense?
It certainly does; I offered him the following analogy:
– Contract grants rights to fruit
– Contract says “fruit excludes tomatoes”
– He adds “without limitation” after “excludes” to be sure the contract doesn’t grant rights to lawnmowers
I think key issue is not “include” or “exclude” with or without “limitation”, but definition of something to be included or excluded. Generally a list of relevant characteristics, together with some concrete example, and finally “among others”, “similar things” blablabla. Exclude without limitation seems not so bad.
You’re mistaken.
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It is an unnecessary example of what I call the “profound ontological uncertainty” that afflicts modern contract lawyers – excellent fellows who struggle with the really rather easy notion that a whole is comprised of its parts, and that listing the universe of all possible parts is no more comprehensive than stating the whole.
There are many variations.
http://amwellclear.co.uk/w/index.php?title=Including,_but_not_limited_to