(c) The issue of ‘include’ and ‘without limitation’

Drafters often want to clarify their dry and abstract wording by specifying examples or by listing items that loom large in the transaction. A party may also want to provide for a reminder to the other party of what is covered anyhow (without necessarily being complete). Perhaps those drafters like to remove any uncertainty as to how those items are to be considered. In plain English, you would accomplish all this by using including, followed by a list of items to be specified:

… all inventories, including products ordered but not yet delivered to customers.

No without limitation. Including can be used as a modest alternative of 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, it is also parlance that courts have (albeit only occasionally) 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 seriously believes 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 not limitative. It is excessive to do this.

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

Target Company shall not make any investments in any Subsidiary, in­cluding the payment of cash dividends by a Subsidiary to Target Company.

Obviously, a distribution of dividends by a subsidiary to its parent is not an invest­ment by the parent in the subsidiary. What does the phrase mean? A party may argue that the payment of cash dividends is prohibited. If this is correct, what about the payment of stock dividends? At the same time, a reasonable argument would be that the payment of dividends is not covered by the prohibition on invest­ments, that the reference to it in the underlined language was done in error and should have no effect. What is the proper interpretation? You will probably need a lot more information to understand the parties’ mutual expectations and intended agreement. Avoid making this mistake.

Another best practice principle that I see, would be that you should list what could be overlooked whilst performing under the agreement or if there is potential uncertainty over the listed item being covered. For example, it would be perfectly suitable to agree that Seller shall sell and deliver all fruits grown by it for cooking purposes, including tomatoes. After all, one might believe that a tomato is not a fruit (which is not true: it is).

Excluding. The only reasonable argument I see in favour of exhaustiveness of a list initiated by including would be that its apparent antonym excluding may cover all the not-listed rest. But the mere fact that a drafter did not include a subject matter whilst the parties ‘excluded everything else’ does not make a tomato a non-fruit.