Is “including but not limited to” dangerous?

Question

I am looking for opinions about the phrase, "including but not limited to". Yes, I know that it's commonly used, but is it dangerous to the person signing the contract.

For example, consider "You may not say including but not limited to the words 'cat', 'dog', and 'human'". In this case, it is explicitly stated that if I said cat, dog, or human, I'd be in breach of this contract. However, since there is "including but not limited to", let's say I said "fish". If the party that created the agreement didn't like that I said fish, could they sue me for breach of contract as they never specified what words I could say?

Thanks.

Answer 1

Your specific use could be very dangerous, depending on how important that clause was (one solution is to just delete it, but if that is the point of the contract, then the contract is unenforceable), because effectively this clause prohibits the person from speaking, which is absurd.

The construction is (theoretically) and typically used to explain unclear terms. For example "fastener" could be interpreted to include screws and nails, it might also include bolts and rivets, framing plates, ropes, welding rods, glue, cement... Assuming that the intent is to encompass "anything that you might use to hold these pieces together", then the "included but not limited to" construction is useful. For example, if this relates to "all fasteners must withstand such-and-such force", you may need to include cement, if that could be used to hold the parts together. On the other hand, if this is a contract to supply hardware (bolts, screws, nails), then the unmodified term "fastener" is better (it limits the supplier's obligation to supply stuff that they actually don't supply, like glue).