When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios.
First, let’s consider including. It can be used to introduce a list of obvious members of the class in question, as in fruit, including oranges, lemons, and grapefruit—no one could argue that a lemon isn’t a fruit. But nothing would be accomplished by listing obvious members of a class, other than tempting a court to conclude that fruit in fact means citrus fruit.
A more constructive use of including is using it to bring within the scope of the class in question something that arguably isn’t part of that class, as in fruit, including tomatoes. This use of including would preclude unhelpful arguments about whether tomatoes are fruit or vegetables. And just as importantly, no court could conceivably announce that fruit means just tomatoes.
What bearing does this have on for example? For example can be used instead of including to accomplishes the first function of including described above, namely listing some obvious members of the class—fruit, for example oranges, lemons, and grapefruit. But it’s not up to serving the second function—fruit, for example tomatoes would probably seem a bit odd to the average reader.
Given that I recommend that you not use including in contracts to list obvious members of a class, it follows that I recommend you not use for example before lists of items.
But for example serves other purposes. It could, for instance, be used to introduce an example of how a given formula might operate.
(My full analysis of including without limitation is at MSCD 12.100. A preliminary version can be found in this blog post.)
8 thoughts on ““For Example””
I agree with your post. I notice that in my contracts, I use “for example” in three contexts:
First, I use it to show how a formula or process is to be applied. (E.g., “For example, if Operating Costs (exclusive of Non-Capped Operating Costs) during the year in which the Term commences were $100,000, the cap on Operating Costs (exclusive of Non-Capped Operating Costs) for the fourth full year would be $122,504 ($100,000 times 1.07 times 1.07 times 1.07).”)
Second I use it to give the most common or expected application of a more general statement or rule–like this: “If Tenant desires water to serve the Premises (for example, to serve a private lavatory or kitchen approved by Landlord),” or like this: “If a third party breaches this restriction (for example, if another tenant begins to operate in violation of the restrictions above without Landlord’s permission”.
Third, I use it like in your tomato example, when I have specific instances in mind that I don’t want questioned. (“The Exclusive Use Protection will not apply to a full-line supermarket (for example, Safeway, Winn-Dixie, or Stop & Shop)”.
Paul hits it on the head in his third example, er, illustration. Toward that end, I often use including, for example, X [and Y], with or without commas depending on the context. That seems much more plain-English than including without limitation, and makes the meaning more clear without what Ken aptly describes as the ponderousness of the latter phrase (MSCD2.0 § 12.120).
Adapting Paul’s illustration: The Exclusive Use Protection will not apply to any full-line supermarket, including for example Safeway, Winn-Dixie, and Stop & Shop. I seriously doubt a court would read this list as intended to be exclusive — that would render the “any full-line supermarket” language nugatory. (Nice job of collecting case authority in MSCD2.0 § 12.100, by the way, Ken.)
If you’re really anal, you can include a usage clause saying that for example is used for purposes of illustration and not limitation. Sure, maybe once in a blue moon a court will ignore that, as pointed out in MCSD2 —12.115 et seq., but if it’s clear from the context that the parties intended otherwise in a particular phrase, maybe the court should indeed ignore it.
D.C.: I think that including conveys Paul’s intended meaning better than for example.
And given the redundancy, I would never say including for example.
And I’m not a fan of the sort of “usage clauses” you mention. As a general matter, the reader should be able to figure out what you mean without such crutches. I discuss such provisions in MSCD chapter 14; in particular, see 14.7.
Sorry to be such a downer!
Ken writes: “As a general matter, the reader should be able to figure out what you mean without such crutches.”
As a general matter, I agree, especially when it comes to archaic legalese.
On the other hand, a lot of contract language is susceptible to ‘spin’ attempts by counsel. As litigation counsel, I’ve worked both sides of that particular street; as a drafter, I’ve found that a little bit of helper language here and there can be cheap insurance, even when it’s arguably redundant (as long as you’re careful to avoid internal inconsistency, of course).
You don’t even have to have a lawsuit for helper language to be useful. If the helper language is phrased in plain English, it can make it easier for the business people to spot bad drafting that has resulted in a mismatch between the contract language and the ‘real’ business deal, before the contract is signed.
I’ve been in post-signature situations where the other side’s business guy claimed that the deal was X (often fueled by buyer’s- or seller’s remorse), but then his lawyer conceded that the language says Not-X. In that kind of situation, the schadenfreude is fun, but it doesn’t do the parties’ business relationship any good.
Most of the time it’s better to identify and correct these misunderstandings on the front end whenever possible. Plain-English helper language, even if technically redundant, can make this easier.
I have started using “usage clauses,” and I find that they help to streamline drafting and make documents shorter and easier to read. I like usage clauses because on the one hand, they also allow me to say things in “plain English” so that a non-lawyer gets it, but not worry about a lawyer later parsing the words looking for ambiguity.
I’ve started putting a usage clause paragraph in an annex of miscellaneous terms and definitions that I attach to major documents, like purchase agreements and leases. This keeps usage clauses from cluttering the body of the document.
An example from my usage clause paragraph is “(c) each Exhibit, Schedule, Attachment, Annex, and other attachment to an Operative Document (each an “attachment”) is incorporated into the Operative Document to which it is attached, (d) unless reference is made to another document, a reference to a subdivision or attachment refers to such subdivision of or attachment to the Operative Document containing the reference,” It’s very liberating to then have references all over the body of the document simply to, for example, Exhibit C, rather than “Exhibit C attached to this Agreement, which is incorporated into this Agreement by reference for all purposes as if written out in full”.
Paul: We’re veering off topic a bit, but I’m of the view that the ostensible utility of what you call “usage clauses” and D.C. calls “helper language” disappears once you take a close look at it.
For instance, regarding your usage clause (c), I invite you to have a look at MSCD 4.76, which says that it’s redundant to say that attachments to a contract constitute part of that contract. And MSCD 14.16 suggests that your usage clause (d) is equally unnecessary.
Stating the obvious comes at a cost: it adds words, and it encourages a reluctance to take contract language at face value.
I am a fascinated newcomer to MSCD2 and adamsdrafting.com.
I haven’t seen mentioned the following way of not using “including.”
Generally “including” is preceded by a general word such as “fruit” and followed by several specific words such as “oranges, lemons, and grapefruits.”
The two questions that typically arise are whether the list is exhaustive or only exemplary, and if not exhaustive, whether ejusdem generis applies (just citrus fruits? are tomatoes fruits?).
A solution I like is to reverse the order of the general and specific examples, and, if appropriate, to say “similar and dissimilar” (or “similar or dissimilar”) before the final general term.
Example 1a (before): “Customer may resell purchased fruits, including oranges, lemons, and grapefruits.
Example 1b (after): “Customer may resell purchased oranges, lemons, grapefruits, and all other similar and dissimilar fruits.”
If 1b leaves the status of tomatoes unclear, I suppose it would be good to mention them specifically.
Example 2a (before): “Tenant shall not allow accumulations of debris on the Premises, including trash, garbage, newspapers, unregistered cars, or recyclable materials.”
Example 2b (after): “Tenant shall not allow accumulations on the premises of one or more of the following: trash, garbage,newspapers, unregistered cars, recyclable materials, and all other similar or dissimilar debris.”
My objection to “including” is mostly but not entirely esthetic. It’s trite, and I don’t like bloated formulations like “including by way of example and not of limitation.”
But I am not entirely comfortable with what I think is your positon that “including” implies “without limitation.”
The next example shows that my workaround can sometimes be more stilted than the “including” version, which I nevertheless dislike, although 3a is the least objectionable example of its use.
Example 3a (before): “Acme may sell shares to any Person, including Doe.”
Example 3b (after) “Acme may sell shares to Doe, any other Person, or both.”
Example 4a (before): “Ruritanian law will apply to all claims (including tort claims) arising from this agreement.”
Example 4b (after): “Ruritanian law will apply to all tort claims and all other claims arising from this agreement.”
Your similar or dissimilar idea is an interesting one. It might come in handy when for whatever reason you feel you need to include illustrative examples, as in your example 2. Let me think about it.
But I’m not crazy about your example 1. Whereas a reasonable person might wonder what exactly debris means, I don’t think a reasonable person would need to be told that oranges, lemons, and grapefruit are all fruit.
Your example 3a doesn’t concern me, as no rational court could conclude that any Person can only mean Doe or someone Doe-like. And example 4a doesn’t trouble me either. In those contexts, I’m happy to use including straight, without any without limitation folderol.