Contract drafters often want to clarify their dry and abstract wording by specifying examples or by listing items that loom large in the transaction. The word “including” does the job. But many drafters then write “including without limitation” (or “including without limiting the foregoing”). 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.
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:
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. Avoid making this mistake.
When to “include”? A best practice principle related to the use of including – but without without limitation – would be that you 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 remainder. 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. The use of without limitation would therefore be appropriate where including is combined with excluding.
