Reader Jason recently posted the following comment to my April 2007 post on including without limitation:
I just ran across an instance of including with limitation XXX.
I couldn’t determine if with limitation meant:
- only;
- that XXX is included, but with limitations on what parts of XXX are included; or
- things that are limited, and XXX is one example of such things.
Here’s an including with limitation example I grabbed from public files: “Tenant shall cause drawings and specifications to be prepared for, and shall cause to be performed, the construction of the alterations or additions in accordance with all applicable laws, ordinances and regulations of all duly constituted authorities, including, with limitation, Title III of the Americans with Disabilities Act of 1990, all regulations issued thereunder and the Accessibility Guidelines for Buildings and Facilities issued pursuant thereto, as the same are in effect on the date hereof and may be hereafter modified, amended or supplemented.”
Not sure if you’ve run across this, but it seems that there are a fair number of examples of including with limitation on Edgar.
I’m delighted that Jason pointed out including with limitation. It’s hardly common—it occurs in five contracts filed last month on Edgar as material contracts, whereas including without limitation occurs in more than 3,000 contracts filed during the same period.
I have no idea what including with limitation might mean; I can only assume it’s a mistake. But I don’t think it’s a typo—it’s more likely that those who use it are under the impression that including with limitation has some clear meaning. If you think that it in fact does have a clear meaning that I’m missing, please let me know.
In patent claim drafting, the standard term for “including, with limitation” is consisting of, whereas the term for “including without limitation” is comprising.
So in patent-ese, your example would be phrased as “… in accordance with all applicable laws, ordinances and regulations of all duly constituted authorities, consisting of Title III of the Americans with Disabilities Act of 1990, [etc.]”
I’m not sure that’s any better, but it might evoke some other ideas.
My personal opinion is it’s a false opposite of “including without limitation.” I’m reading a somewhat old book called “The Mother Tongue” by Bill Bryson that discusses the grammatical history of English (I promise it’s more interesting that it sounds), and it discusses these false opposites, as I’ve styled them, sort of a “if without limitation means the list is just illustrative, with limitation must by deduction mean the list is exhaustive.”
I suggest, based solely on my authority as someone willing to comment on a Legal Drafting blog at 11 pm on a Friday night:
…apologies. I had an edit, but then I saw the language “all applicable law.” I have no idea what idea this particular text was attempting to convey.
Chris: Your suggestion is, as a general matter, entirely plausible, even if the example Jason cited is beyond any rational construction.
And this is one place where you don’t need to apologize for an interest in grammar!
Ken
The example makes no sense to me. It seems to say that the plans do not need to comply with any laws except those enumerated. If that were the case, why not say “including only”, or better yet, scrap the general description and refer only to the accessibility laws? But surely the drafter did not mean that the tenant could ignore building and safety codes.
All I have to say is weird, I hadn’t heard of this until I saw it in a draft last week and here it is in a blog post. *looks for Ken over his shoulder*
Here’s the clause as it originally appeared: “The Uniform Commercial Code (UCC) applies to the delivery of any Deliverables under this agreement including with limitation UCC Article 2 Section 2-312(2).”
I couldn’t for the life of me figure out what they meant. I was apparently the only one to ask about it, ever. When I pressed the company on it, their attorney changed the language to: “excluding.”
If anyone is interested, UCC Art. 2 2-312(2) is an exception to the rule that sellers indemnify buyers for infringement by imposing an obligation to indemnify a seller of a good if the seller is complying with a buyer’s specification.
“Including with limitation” to “excluding.” Wow, that’s something I could never imagine. It was probably a typo then the attorney wanted to cover it up, and used excluding. It’s good to know I’m not the only one that has a problem with this wording.
Ken,
Thanks for the post, it’s scary to think that this wording is in at least 5 other contracts filed in the last month. I was wondering if there was some statutory reason for its inclusion, with limitation of course.