4

I'm reading over a lease agreement and in one page a passage reads, "...including, but not limited to, [list]" while on a later page another passage reads, "...including [list]."

Normally I would assume the verb "including" to be non-exhaustive, but since the non-exhaustiveness was emphasized in the former passage, am I to assume the latter list is actually exhaustive?

  • Including usually kicks off a dependent clause, and dependent clauses can be removed without changing the meaning of a sentence. It would be foolish to put an exhaustive list in a dependent clause, especially without explicitly stating the list is exhaustive. Furthermore, including something has no connotation of excluding everything not mentioned. It would be unusual to use including with an exhaustive list; one would use other words. You might be overthinking things. – Patrick87 Oct 16 '15 at 14:16
2

A lease is a contract, and the interpretation of a lease follows standard principles of contractual interpretation.

The answer will depend on your jurisdiction, but in common law countries (the US, England, Canada, Australia, New Zealand), the following principles would apply.

Ordinary words are given their ordinary meaning, so 'inclusive' would mean not exclusively. That is, the list that follows is not-exhaustive. Use of the phrase 'but not limited to' emphasises this, but is somewhat unnecessary because of the ordinary meaning.

Use of that phrase inconsistently leads to ambiguity. Why is it used in once place and not another? The ambiguity allows one to argue that the absence of the term in one clause (and its presence to introduce a list in another) must mean that the drafter intended there to be a difference. That difference is that the list is an exclusive list where 'not limited to' is absent.

This is just lawyers trying to make the most of a drafting error though, and courts/judges would likely acknowledge the error (and the fact it was intentional), and ignore the difference.

Result is that there's no real difference. If you were in court and making last ditch arguments, sure, it's something you could lean on. But in the real world, there's no difference.

1

There is a principle of legal interpretation expressio unius est exclusio alterius ("expression of one thing is the exclusion of another"), which is used to decide whether a statement includes or doesn't include items not explicitly mentioned. If for example you want to prohibit weapons in a law or contract, you can just say "weapon", but then the question arises what constitutes a "weapon" – is a chopstick a weapon? If you say "Weapons, such as pistols, rifles, shotguns, mortars, sub-machine guns and howitzers", the clause is slanted in favor of the understanding that the drafter specifically intended firearms (since they failed to mention a large class of common weapons). Including "but not limited to" helps to defeat the interpretation that a long illustrative list might be intended as an exhaustive list. Since it introduces uncertainty as to what a term refers to, it is good for the purposes of a drafter wanting an expansive interpretation that could include non-obvious examples.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.