Today I put this out on Twitter:
Has anyone encountered an instance of someone seeking to use "including" to add to a class something that categorically would not otherwise be part of the class? For example, "fruit, including carrots."
— Ken Adams (@AdamsDrafting) January 6, 2022
This question came to mind because it’s one aspect of including pathology that I haven’t considered.
Here’s an early submission:
Direct damages “including the costs to notify those affected, personnel cost to respond to inquiries and attorneys’s fees.” https://t.co/XwyKMRKS05
— API (@API_HABOTN) January 6, 2022
I recommend you not do the fruit, including carrots thing. I don’t think it’s confusing, but it is weird. Instead use *drum roll* and. As in fruit and carrots.
Do you have any examples?
(You worried about red fruits, including tomatoes? That’s addressed in this 2019 blog post.)
‘Including’ apparently attracts drafters irresistibly, so the best advice has to have two levels: (1) never use ‘including’; (2) if you can’t resist its siren song, define it.
Bryan Garner urges drafters to define ‘including’ as ‘including without limitation’, but that doesn’t clearly answer both questions raised by ‘including’: (1) are the examples exhaustive? (ie does ‘including’ mean ‘consisting exclusively of’?); and (2) are the unlisted members of the class similar to the listed ones? (‘animals including cats and dogs [and foxes but not bacteria?]’).
It’s easy to work out a definition of ‘including’ that eliminates both kinds of limitation (exhaustion and sui generis), but in my view it’s better to eschew ‘including’ in favor of formulations like ‘cats and dogs and all similar and dissimilar [animals] [mammals] [pets] [fur-bearing animals] [four-legged animals] [land animals] [your advert here, reasonable rates]’. Put the exemplary words first and the general word(s) last. That format forces the drafter to focus on what’s intended, avoiding later trouble.
As for ‘fruit, including carrots’, why not ‘carrots and fruit’?–Wright
*wait while AWB rehashes extraneous stuff* :-)
Yes, carrots and fruit. But the point here isn’t to propose that we do fruit, including carrots. Instead, I’m assessing the various ways people use including.
Sorry to have rehashed extraneous stuff. I apparently failed to apprehend the narrowness of the post. Mea culpa.
MSCD recommends that ‘if you’re relying on the general word to convey its everyday meaning, use *includes* or *including* only to make it clear that the preceding noun in fact includes something that might otherwise not fall within its scope’. MSCD 13.370.
The current post seeks instances of the use of ‘including’ to add to a class something that ‘categorically’ would not otherwise be part of the class.
Assuming the posted query is not whether anyone has encountered instances of someone using ‘including’ as MSCD recommends, the query must intend a distinction between (a) included items that ‘might not’ belong to the class and (b) included items that ‘categorically’ would not belong to the class (but for the use of ‘including’).
With that understanding, the early submission by API *seems* not to be an example of the requested usage, but rather an MSCD-recommended usage, because the included items ‘might not’ be part of ‘direct damages’ but would not be ‘categorically’ excluded.
Still in penitential mode, I should correct my error that ‘including’ is afflicted with only two kinds of unclarity. It’s three: expressio, noscitur, and ejusdem (see MSCD 13.380).
So against Adams, I (humbly) say (a) don’t use ‘including’ and (b) if you do, define it. Against Garner (also humbly — I’m a humble lad), I say (a) don’t use ‘including’, and (b) if you define it, Garner’s proposed definition (‘including but not limited to’) doesn’t remove all three kinds of unclarity. To quench all three would take something like: ‘containing the included items whether or not they are like members of the general class or are like each other’. –Wright
Ken your example deals with black and white, but as an observation, most drafters use it for what might be ‘grey area’ examples, for things that might or might not fit in the early list. So, using your fruit example, ‘including’ is better suited to ‘fruit, including eggplant, olives, green beans, avocadoes and tomatoes’. The concept is ‘yes, they are (and always were!) fruit, but I don’t want to argue with you later, so I’m doing it now.’ FWIW, when my brain is working a la Ken Adams, that’s how I try to think of it. Bonus find: I just read that watermelon is legally a vegetable in Oklahoma. So in Oklahoma, you could write ‘vegetables, including watermelon’!
Yes. I recently compiled the half-a-dozen ways people use including, and the use you point out is the only sensible one of the bunch.