[Go here for my most recent post on this subject, from 2016.]
This blog has revisited sporadically topics that I’ve decided aren’t covered adequately in MSCD. Here’s another one—the verb include.
Illustrative Versus Restrictive
Including and includes have traditionally been used to introduce a nonexhaustive list. Here’s how Black’s Law Dictionary defines include: “To contain as a part of something. The participle including typically indicates a partial list (the plaintiff asserted five tort claims, including slander and libel).”
Nevertheless, some courts have, in two different ways, used the list following a given including or includes to limit the meaning of the word or phrase (usually a noun or noun phrase) preceding the including or includes.
First, some courts have held that an item only falls within the preceding noun if it falls within one of the items in the list. The thinking is that if the preceding noun were being used to convey its unrestricted meaning, referring to subcategories of that word would serve no purpose. See, e.g., Application of Central Airlines, 185 P.2d 919 (Okla. 1947) (holding, with respect to use of the word including, that “if the lawmakers had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes”).
Second, some courts have held that something only falls within the preceding noun if it’s of the same type as one or more items on the list. See, e.g., Horse Cave State Bank v. Nolin Production Credit Ass’n, 672 S.W.2d 66 (Ky. Ct. App. 1984) (“[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)).
The willingness of courts to use including or includes to restrict the meaning of a preceding noun has prompted perhaps a majority of drafters to resort to the phrases including without limitation and including but not limited to (and their equivalents using includes). The aim is to make it clear that the unrestricted meaning applies. To give you an indication of how extensive this practice is, in the last week of March 2007 1,141 contracts containing the word including were filed on the SEC’s EDGAR database as Exhibit 10 “material contracts”; of those, 814 contained at least one instance of including without limitation or including but not limited to. (Of course, any one or more of those 814 contracts might contain a mixture of usages.)
There are three problems with using including without limitation and including but not limited to (and their equivalents using includes) to make it clear that the unrestricted meaning applies.
Paucity of Cases Holding That “Including” Is Restrictive
First, recent cases in which the verb include is given a restrictive meaning are few and far between. More common are cases such as DIRECTV, Inc. v. Crespin, 2007 U.S. App. Lexis 6279 (10th Cir. Mar. 16, 2007) (referring to “the normal use of ‘include’ as introducing an illustrative—and non-exclusive—list”). See also People v. Perry, 2007 WL 495285 (Feb. 16, 2007 Ill.) (relying in part on “the plain and ordinary meaning” of the word includes in holding that the absence of additional verbiage such as but not limited to did not preclude the following list from being illustrative); Auer v. Commonwealth, 621 S.E.2d 140 (Va. Ct. App. 2005) (“Generally speaking, the word ‘include’ implies that the provided list of parts or components is not exhaustive and, thus, not exclusive.”)
Presumably it is the everyday meaning of the verb include, plus the paucity of cases giving a restrictive meaning to it, that allows Black’s Law Dictionary to conclude that phrases such as including without limitation and including but not limited to “mean the same thing” as including.
(Incidentally, many cases hold that including (or includes) is a term of enlargement, not of limitation. “Enlargement” presumably refers to the practice of using including or includes so as to bring within the scope of the preceding noun something that would normally be excluded, as in “Motorcycle” includes any bicycle powered by an electric motor. But courts trot out the enlargement-not-limitation mantra even when including or includes is used to introduce an illustrative list that doesn’t seek to enlarge the meaning of the preceding noun. For our purposes, however, all that matters is that cases that hold that including or includes is a term of enlargement necessarily do not stand for the proposition that either term has a restrictive meaning.)
Weak Case Law Holding That “But Not Limited To” Makes “Including” Illustrative
Second, there’s little in the way of case law holding that adding without limitation or but not limited to to including would render including illustrative rather than restrictive. Although there are doubtless other cases out there, in an online search I only found two cases on point.
In Leach v. State, 170 S.W.3d 669 (Tex. App. 2005), the court held as follows:
We cannot agree with [the appellant’s] contention that “the administrative agency charged with supervising offenders and implementing a child safety zone believed that the words ‘includes’ and ‘including’ are terms of limitation” because the definition of “child safety zone” in the document uses the phrase “but not limited to” after the term “including.”
But the court then went on to undercut the significance of but not limited to by citing a number of cases standing for the proposition that including without but not limited to isn’t restrictive.
In Jackson v. Concord Co., 253 A.2d 793 (N.J. 1969), the court held that terms like include are “words of enlargement and not of limitation and that examples specified thereafter are merely illustrative.” It went on to note that “[t]his is especially so here where the word ‘including’ is followed by the phrase ‘but not limited to.’” But attributing significance to “especially” would seem at odds with the court’s flat assertion that including is illustrative.
So as authority for the proposition that but not limited to serves to turn a restrictive including into an illustrative including, these cases are weak.
Cases Disregarding “But Not Limited To” in Holding That “Including” Is Restrictive
And third, some courts have held that including is restrictive even when but not limited to is added.
In one relatively recent case, Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832 (7th Cir. 2002), the court disregarded the phrase but not limited to in holding that an item only falls within the preceding noun if it falls within one of the items in the list following including:
[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 surplussage.
And at least one court has held that despite presence of the phrase but not limited to, to fall within the preceding noun an item must be of the same type as one of the items following including. See In re Clark, 910 A.2d 1198 (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.”).
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 intent of the parties. In the process, it could well elect to disregard any drafting that it regards as not going to the intent of the parties. Given that many drafters automatically add but not limited to or without limitation to each instance of including, a court could conclude that such phrases have no bearing on the intent of the parties.
Cutting Back on Use of Illustrative Lists
If you’re worried that a court might go against the tide and hold that including or includes is restrictive, you could reduce that risk by reducing the number of illustrative lists you include in a contract. (Reader John Fitzpatrick suggested as much in a comment to this post.) When you’re contemplating adding an illustrative list, ask yourself whether you’re adding clarity or merely stating the obvious.
The everyday meaning of including is such that including without limitation and including but not limited to mean the same thing as including. When considered as a whole, more often than not U.S. courts go with the everyday meaning of a word. That’s why most courts that have recently considered the meaning of including have held that including doesn’t convey a restrictive meaning.
One could nevertheless continue to tack on without limitation or but not limited to, just to fend off courts that might be inclined to go against the tide and give including a restrictive meaning. For the following reasons, I recommend that you not do so:
- the risk involved is a very modest one;
- the protection afforded is highly uncertain, given that you can’t rely on a court to pay any attention to without limitation or but not limited to;
- these phrases are redundant and confusing, given the everyday meaning of the verb include; and
- they render contract prose more ponderous.
Whereas I’ve limited my research to U.S. case law, I’d expect my conclusions to apply in other jurisdictions.
I’ll be doing further research on this issue, and I may well adjust my analysis. Meanwhile, I’d be pleased to receive comments.
21 thoughts on ““Including Without Limitation””
See In re Clark, 910 A.2d 1198 (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.”).
This sounds like ejusdem generis, which I detest and which I believe is silly. I do not see it in MSCD. Have you written about it?
Wayne: Holding that including is restrictive relies on the same logic as ejusdem generis. The only difference is that in ejusdem generis the catch-all term comes after rather than before the list of components, as in any tractor, plow, disc, or other farm machinery.
That being the case, it follows that I, too, am not a fan of ejusdem generis. More generally, I think that when courts invoke rules of construction, they abdicate their responsibility to determine the intent of the parties. Others have written about this (Richard Posner, for one), but I expect that I’ll wade in at some point.
The canons of construction are (uniformly?) post hoc tools to justify a decision. I see them as an abdication of the duty to explain the reasoning of the opinion.
Along with not using an illustration if it’s not especially helpful, how about balancing the goals of uniform expression and avoiding clutter with protection against the risk that a judge interprets a phrase using one of the feared construction preferences by stating (only once, and preferably at the back of the agreement) the contracting parties’ construction rule:
n.n.n “Includes”, “including”
A use of the word “includes” includes the phrase “but is not limited to”. A use of the word “including” includes the phrase “but not limited to”.
Peter: I mention this sort of provision in MSCD ¶ 11.4. I’m not much of a fan of provisions specifying drafting conventions, but this one is less objectionable than many. But I see two problems with it. First, it should be redundant, as it simply restates the everyday meaning of the verb include. And second and more significantly, any court that is willing to hold that including is restrictive even when but not limited to is added should also be willing to disregard this sort of provision. So like including without limitation, this sort of provision provides very uncertain protection against a very modest risk. That said, if you’re drafting an agreement that contains a section specifying drafting conventions, then by all throw this one in. It wouldn’t add much to the clutter. Ken
I can’t thank you enough for this analysis — brilliant and thorough — on an issue I spent two hours researching without result yesterday.
This is a $2.5 million question for the client of a client, which just goes to show you two things: (1) transactional lawyers and litigators should be talking to one another more often; and, (2) there’s NO place like the legal blogosphere to find the most highly sophisticated practical legal analysis available.
If you ever need ADR or insurance coverage advice — the latter my deepest specialty — please pick up the phone and call me any time. Heck, if you ever need a favor in Los Angeles! just call out my name. Anything but my first grandchild.
Mountains of gratitude, Vickie
Although I agree with you that we should avoid redundancy and other useless prose, I shall continue to use “including without limitation.”
Unfortunately, not every lawyer thinks the same way as you. I believe that a competenent attorney should consider that a dimwitted opposing counsel may try to raise the restrictive definition of “including” argument. Do you think your client wants to spend the money to defend the position?
I just ran across an instance of including, with limitation, XXX.
I could not determine if with limitation meant:
2) that XXX is included, but with limitations on what parts of XXX is included or
3) things that are limited, and XXX is one example of such things.
Here’s a 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 “with limitation” phrases in existence on Edgar.
I agree with Ben, and would extend my concern to “dimwitted judges.” Even if there are few cases holding that “including” alone is restrictive and not illustrative, and even if courts have either ignored “but not limited to” or “without limitation,” or not specifically held that adding one of these qualifying phrases makes “including” illustrative, it seems prudent to add one of these phrases (preferably “without limitation,” which is shorter) as long as there are cases lurking out there like Horse Cave State Bank, which Ken cites. The slight burden imposed on the reader (especially if the “without limitation” phrase is included in the drafting conventions) is more than outweighed by eliminating the risk (albeit minimal) posed to the client.
"Affilate means a corporation
that controls. is under common control with, or is controlled by a
party. As used therein, "control" includes the ownership, directly or
indirectly, of at least fifty and one tenths per cent (50.1%) of the
issued voting capital shares"
Is the "includes" used in the definition above is restrictive?
Thanks for asking. Here’s my answer: https://www.adamsdrafting.com/related-to-but-not-limited-to/.
“This limitation is not limited to students” What does this mean about Pell Grants? My first Pell Grant was before July 1, 2008
Duration of eligibility
All students may receive Pell Grants for up to 12 semesters, measured by percentage of Scheduled Awards(s) disbursed (“Lifetime Eligibility Used,” or “LEU” field in COD up to 600%). This limitation is not limited to students who received their first Pell Grant on or after July 1, 2008, as was the previous limit of 18 semesters or equivalent. For more of duration of Pell eligibility and LEU, see Volume 3, Chapter 3 of the FSA Handbook.
To include— suggest including but adding “not limited to” is a limitation to the “to include” . You dont need to insert anything other than “including” otherwise the intent is limited. Bad Grammer fails to support a good arguement. In my case of a apartment lease is the intent to protect the owner or leasee or to hold the leasee responsible for an unseen variable such as marriage or job transfer.
I prefer to simply use “including” or “includes” in my drafting. To minimize any risk that their usage could be interperted restrictively I have introduced the following in my interpretation section:
The expression “including” shall be without limitation.
See MSCD 15.16 for why I included this among the “provisions specifying drafting conventions” to avoid.