In this comment, reader MLB asks, “What’s your thought on the following phrase: ‘related to, but not limited to’ in a contract?”
My response: WTF?
A search on EDGAR found only 49 contracts that use the phrase, and perhaps half of them represent multiple instances of contracts based on the same template. So it’s a rarity—thankfully so, as I don’t know what it means. Don’t use it!
Below are some examples from EDGAR. I’m not even sure what to use instead of related to, but not limited to.
“Device Equipment Contribution” means the PURCHASER’s […***…] reimbursement of research and development costs of SELLER related to, but not limited to, the Device Equipment as described in Exhibit C.
In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or decision thereunder, Purchaser must rescind or restore any payment, or any part thereof, received by Purchaser in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or discharge from the terms of this Guaranty given to Guarantor by Purchaser shall be without effect, and this Guaranty shall remain in full force and effect to the extent related to, but not limited to, the amount of rescinded or restored payment.
After any fair market value rate study which indicates rents need to be increased, Landlord will increase rents to comply in full with laws and regulations related to but not limited to statutes and regulations prohibiting fraud and abuse, kickbacks and self referrals.
Identify a working team within MMTL to engage with IBM teams on an ongoing basis various aspects related to but not limited to IT, Training, Quality etc.
At the risk of suggesting Latin, inter alia might look better than “but not limited to” in the first and fourth of these examples. Heaven knows what the meaning is in the second and third examples.
What’s wrong with translating inter alia? “Among other things” is perfectly understandable to those of us for whom, unlike my daughter, Vergil is not a homey.
I do sometimes regret Ken’s aversion to Latin in contracts, understandable as it is, since “mutatis mutandis” is essentially untranslatable, and “of equal rank with each other” is so much clunkier than “pari passu inter se(se).” Sure, it’s arcane knowledge, but for those of my generation it provides what we used to call “a teaching moment.”
“Appearing pro se” is a phrase the Connecticut judicial system has replaced with “self-representing,” which strikes me as impossible, like substituting for yourself.
“Pro bono [publico]” hasn’t been banished yet, perhaps because it’s hard to capture in succinct English the two implications: “no fee” and “in the public interest.”
Isn’t Mutatis Mutandis the Greek prime minister?
I’m thinking Ken will disapprove of “among other things” on the same grounds as those on which he rejects “etc.”
In drafting foreclosure complaints, we are required to describe the other encumbrances on the subject property and say whether they are prior or subsequent in right to the encumbrance being foreclosed. But sometimes an encumbrance is neither, and we say, e.g., “The lien has the same priority as the plaintiff’s mechanic’s lien.” Somehow “pari passu inter sese” never popped to mind.
But back to “related to, but not limited to”: if it isn’t an outright joke or a “poison pill” inserted to see if anyone is proofreading, then in the wonderful but underused phrase that originated, I think, with Henry Hazlitt the economic writer, it is “error all compact,” i.e., the kind of thing that’s quick and easy to say or write, but long and laborious to unpack and fix or refute.
Based on those examples, it appears to me to simply be lazy drafting.
The first example creates a definition by reference to certain items the purchaser reimburses the seller for, but then uses the phrase to take it a step further and basically extend those certain items to “and everything else”.
The second example I’m not going to touch because I can’t quite figure out the context where a purchaser gets what appears to be third party guarantor, and then cross guarantees something for the guarantor. That said, it almost seems like including the event of a rescinded or restored payment into an indemnity would get rid of the phrase in question.
The third can simply be re-written to end in, “to comply with applicable law”.
The fourth example looks like you could simply list the topics you want the teams to address and then leave it in their discretion as to what other topics get added to that.
It makes no sense to me, either grammatically or logically. Grammatically it thinks that “related to” and “not limited to” are the same parts of speech, but I think the former is a preposition and the latter is (I would say) an adjective, or part of an adjectival phrase. That is why it reads so clunkily.
But even if we forgive this, it doesn’t seem clear what it is trying to do. In the phrase “including, but not limited to, …”, the part “not limited to” is intended to clarify the meaning of “including”. But in the phrase “related to, but not limited to,…”, it seems to be directly contradictory. Do the costs need to be related to the Device Equipment or not? Are they trying to say “including, but not limited to, [costs] related to….”? Because that isn’t what they are saying, because the sentence requires that the costs are related to the Device Equipment. Total garbage, and the bigger problem is that it is the sort of thing that only a lawyer could write.
Could any of these instances be translations from French? If so, the “not limited to” is a CYA translation of the overly-adored French word “notamment”. This word can be translated as “such as” or “including” but does carry a strong connotation of “but not limited to” that leaves the door open for any other possibilities. This connotation isn’t as strong in
English, so many translators feel the need to faithfully reproduce the intention of the original “relatif a, notamment, xyz”, even at the risk of sounding heavy-handed in English.
Interesting!