I had such fun contemplating for the avoidance of doubt that I was inspired to move on to its very close relative, without limiting the generality of the foregoing (and the even clunkier without limitation of the generality of the foregoing). My verdict? That you should almost always be able to use a less ponderous alternative.
Drafters use the phrase without limiting the generality of the foregoing to introduce one or more examples of a concept described in the immediately preceding language. (This is one of the functions of for the avoidance of doubt.)
One problem is that it’s not necessarily clear what the foregoing refers to. (Nowithstanding the foregoing suffers from the same problem; see MSCD 9.34.)
But that’s the least of it. The main awkwardness with this phrase is that it’s like a muddy patch in a footpath—the reader is brought to a standstill, then has to slog through it.
A simple alternative is the phrase including without limitation, which serves the same function. (See MSCD 9.6.). Not only is it shorter, it also allows you to express the same meaning in once sentence instead of two, thereby allowing you to eliminate further surplussage. Here’s an example (deleted language is in strikethrough; new language is in brackets):
Acme shall not make any claim or take any action adverse to Dynamic’s ownership of or interest in the Dynamic Marks
. Without limiting the generality of the foregoing, Acme shall not attempt to register[, including without limitation registering] any Dynamic Mark or any mark confusingly similar thereto in any jurisdiction.
Another alternative would be to place the examples at the front and modify the general concept so that it becomes a catch-all at the end:
The Debtor shall from time to time, at its expense, immediately execute all documents and take all actions that the Secured Party requests in order to perfect any security interest granted under this agreement or to enable the Secured Party to exercise its rights under this agreement with respect to any Collateral. Without limiting the generality of the foregoing, the[The] Debtor shall immediately upon request of the Secured Party do one or more of the following: (1) execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices, as the Secured Party requests in order to perfect the security interests granted under this agreement (in such jurisdictions and with such officers as the Secured Party requests); (2) allow the Secured Party or any person designated by the Secured Party to inspect any Collateral; and(3) appear in and defend any proceeding that may affect Debtor’s title to or the Secured Party’s security interest in the Collateral [; and (4) at its expense immediately execute any other documents and take any other actions in order to perfect any security interest granted under this agreement or to enable the Secured Party to exercise its rights under this agreement with respect to any Collateral].
In MSCD 9.11 I advise against this—I recommend that you say all fruit, including oranges and lemons rather than oranges, lemons, and all other fruit. But this reflects the conventional wisdom—I haven’t researched the case law to determine how valid this distinction is. On reflection, it seems silly. And if your examples and your catch-all are spelled out in some detail, it seems even less likely that a court would ascribe significance to the order that you use.
When without limiting the generality of the foregoing is preceded by including, it’s particularly evident that including without limitation is the better choice:
If an Event of Default occurs, Mortgagee, in addition to any other rights, will have all rights granted to a secured party on default under the Uniform Commercial Code, including
without limiting the generality of the foregoing[without limitation] the right to take possession of the Collateral or any part thereof and to take such other measures as Mortgagee deems necessary to preserve the Collateral.
And in some cases you can use including without limitation even if you keep the general concept and the examples in separate sentences:
The General Partner shall manage the business and affairs of the Partnership.
Without limiting the generality of the foregoing, the General Partner shall do the following[The General Partner’s duties include without limitation the following]:
Sometimes what follows without limiting the generality of the foregoing does not in fact illustrate what precedes it. In such cases, you should simply eliminate the phrase:
The Company shall not, by amendment of its articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this warrant.
Without limiting the generality of the foregoing, the[The] Company shall (1) at all times reserve, solely for issuance on exercise of this warrant, shares of it common stock issuable, (2) not increase the par value of its common stock above the amount payable for a share of its common stock on exercise of this warrant, and (3) take all such actions as may be necessary or appropriate in order to permit the Company to validly issue fully paid and nonassessable stock.
If the general concept and the examples are sufficiently unwieldy, it might be that your best bet is to use without limiting the generality of the foregoing. But the odds are against that being the case.
1 thought on ““Without Limiting the Generality of the Foregoing””
Thanks, Adam – couldn’t survive at work interpreting lengthy legal documents with excessive repetition without your blog.