shall include without limitation?

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:

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:

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.

Conclusion

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.

In plain English, you would accomplish all this by using including, followed by a list of items to be specified:

The ‘issue’ of including without limitation explained. To understand the ‘issue’ underlying “including without limitation” better, there are two relevant scenarios that are known by their Latin description: Eiusdem generis and expressio unius. A consequence of including examples, clarifying or specifying a phrase is that the one is read with a view to the other. This phenomenon can work in two ways, the one is called eiusdem generis (‘of the same kind, category or nature’) and its opposite counterpart expressio unius est exclusio alterius (‘expressing the one thing excludes all others’).

Eiusdem generis may imply that when a list of two or more specific words is followed by more general words, the otherwise wide meaning of the general descriptors must be restricted to the same kind, category or nature of the specific words that precede them. For example, where “cars, motor bikes, motor-powered vehicles” are mentioned, the word “vehicles” might be interpreted in a limited sense (i.e. vehicles are not intended to include airplanes).

Expressio unius est exclusio alterius may imply that items not listed are assumed not to be covered by the contract term. This ‘danger’ is what risk-avoidant drafters believe is introduced by the word includes or including and should be avoided. The accurate way to do that would be to use the phrase including, without limiting…

No without limitation. Including can be used as a modest alternative to for the avoidance of doubt. In common parlance, using including means that the listed items are examples rather than an exhaustive listing. Although this is clearly not within the ordinary meaning, courts have (albeit only rarely) expressed that a list introduced by including was exhaustive.

It is similar to what Al Gore explained in his film An inconvenient truth: whilst millions of newspaper articles suggested that humans were not responsible for global warming, he clarified that no scientific publication had ever supported such point of view. Likewise, whilst no-one would seriously believe that including implies exhaustiveness to any reasonable extent, many drafters have adopted a policy of preventing such an interpretation by adding but not limited to or without limitation or by specifically providing that includes or including is without limitation. It is excessive to do this.

Best practice. There is one important best practice principle related to the use of including (even if you use including without limitation): do not have it followed by something that is not even included in the preceding phrase. For example: