What is the meaning of including but not limited to?
How do you punctuate it or use it in a sentence?
What is the legal meaning of this phrase in contracts?
We will look at the meaning of the phrase including but not limited to, how it is used in a sentence, its punctuation, how it appears is legal documents like contracts, look at examples of how it is used and the interpretation challenges you may have from a legal perspective.
By reading this post, you will learn things about this phrase that will surprise you.
Are you ready?
What is the meaning of “including but not limited to”
The phrase including but not limited to is used in many ways such as on signs, in contracts, in policies, rulebooks, guides and other documents.
What does “including but not limited to” mean exactly?
Meaning
The phrases including but not limited to or such as but not limited to are used to present a list of things to the reader while at the same not excluding other possibilities.
For example, in a contract, you may read something like this:
Confidential Information includes any non-public, confidential or proprietary information about or belonging to any third party that has been entrusted to Party A or its affiliates (including but not limited to the information of Company A, Company B and Company C)
In this context, the phrase including but not limited to is used to indicate that any third-party information entrusted with Party A is confidential information but it also includes the information of Company A, Company B and Company C.
Instead of listing all the possible third-party information that may be entrusted with Party A, the phrase “including but not limited to” is used to maintain the general scope of the obligation but also provide some specifics.
From a legal perspective, this begs the question.
Is this supposed to be an exhaustive list or a non-exhaustive list?
We’ll cover the legal interpretation of this phrase later, so keep reading.
Punctuation
What is the right punctuation of the phrase ‘including but not limited to’?
How do you use including but not limited to in a sentence?
You can use a comma, hyphen or parenthesis to formulate your sentence.
Example using a comma:
The service provider shall collect or acquire the data legally in its ordinary course of business and shall implement appropriate security measures including, but not limited to, encryption methods, to collect or acquire such data
Example using hyphens:
The service provider shall collect or acquire the data legally in its ordinary course of business and shall implement appropriate security measures including – but not limited to – encryption methods, to collect or acquire such data
Example using parenthesis:
The service provider shall collect or acquire the data legally in its ordinary course of business and shall implement appropriate security measures including (but not limited to) encryption methods to collect or acquire such data
Variations
The phrase including but not limited to can be written or used in a variety of ways such as:
- But not limited to
- Not limited to
- Such as but not limited to
- This includes but not limited to
- Including, but not limited to
- But are not limited to
- Including without limiting the generality of the foregoing
- Without limitation
If you are using this phrase in a contract, it’s important that you pay attention to how you structure your sentence to ensure that you present an exhaustive list or a non-exhaustive list.
When is “including but not limited to” used
The phrase including but not limited to is typically used in legal documents, regulations, statutes, contracts or other official text.
When you want to refer to something in a general way but also make specific mentions of certain things, you may use this phrase.
For example, a company hires an employee and wants to make sure that the employment contract states that the employee must abide by all the company policies and procedures.
The lawyer drafting the contract may think of a few important procedures and will want to specify them in the contract but cannot think of all the possible policies and procedures applicable to the employee.
The lawyer may include contract language that may look like this:
The Employee shall abide by any and all of the Employer’s policies and procedures as may be adopted from time to time, including, but not limited to, anti-discrimination policy, conflict of interest policy and network access policy.
The author of this clause is saying to the employee, “make sure you respect all the company policies and procedures going forward including those that may be adopted in the future and here are a few examples that I would like to highlight to you”.
Legal interpretation of including but not limited to
The law is a fascinating field.
Sometimes we use words or terms in contracts thinking they are clear.
In the event of a dispute or when we come back to what was written, we realize that it was not that clear after all.
Contract lawyers or legal professionals tasked with drafting contracts should take good care in ensuring what they are writing conveys the right meaning and the intention of the parties.
Copy and pasting clauses from different contracts to construct a new provision can lead to costly mistakes.
This leads us to the phrase “including but not limited to”.
Be careful how you use it as it can lead to different interpretations.
Let’s look at what Ken Adams from AdamsDrafting.com and Bryan Garner from LawProse.org have to say on the topic.
Broad interpretation
According to Bryan Garner:
“The best simple solution is to define including as meaning “including but not limited to” in every legal instrument in which the word is used—among the housekeeping provisions. Then you rigorously avoid the cumbersome phrasing each time you want to introduce examples”
From his perspective, you should define the term “including” to mean “including but not limited to” so that you avoid interpretation issues when listing certain items or examples in your contract.
For example, Garner suggests a contractual provision as follows:
“Including without limitation”, “including but not limited to” and “including without limiting the generality of the foregoing” shall be deemed to have the same meaning as the terms “include”, “includes” and “including”
He argues that the advantage would be that you only need to use one word (“including”) to mean “including without limiting the generality of the foregoing” or “including but not limited to”.
Contracts or legal instruments drafted using this protocol, Garner argues, will ensure that you do not inadvertently limit the scope of your contractual provision when you introduce examples.
Restrictive interpretation
According to Ken Adams and in response to Garner’s views, he says the:
“courts have proved willing to consider that including or includes is restrictive even when modified by but not limited to”.
Ken Adams cites the case Shelby County State Bank v. Van Digest Supply Co., 303 F.3d 832 (7th Cir. 2002) where the court was asked to interpret the description of a collateral.
The collateral was described as follows:
“All inventory, including but not limited to agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor by Van Diest Supply Co.”
The court’s assessment was as follows:
[I]t would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole. This is not to say that there is no use for descriptive clauses of inclusion, so as to make clear the kind of entities that ought to be included. But if all goods of any kind are to be included, why mention only a few? A court required to give “reasonable and effective meaning to all terms” must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage.
The court came to the conclusion that if “all inventory” was intended by the parties, there was no reason to then list only a few elements of that inventory.
The court considers that the phrase “including but not limited to” followed by a limited list of inventory items must be read together in such a way that all the terms are given an effective meaning.
From this perspective, the court considered the list to be restrictive even though the term “including” and the phrase “but not limited to” were used.
Court interpretation
As you can see from Ken Adams and Bryan Garner’s interpretation of the phrase “including but not limited to” and the word “including”, we do not have a consensus.
If they are able to defend opposing views on the matter, we can safely say that the phrase including but not limited to can lead to interpretation challenges.
Both arguments have merit although I tend to favour Ken Adams’ views on the topic.
Judges are influenced by the factual underpinnings of the case and the context in which a contractual provision is being interpreted.
As a result, the same provision can lead to different interpretation in different circumstances.
From my perspective, if you are looking to draft a broad provision, you should you use words and terms allowing you to maintain the general and broad scope of your contractual provision.
If you intend to give examples in your contract, consider the possibility that a court may consider your list as exhaustive and assess if you are comfortable with that.
Don’t just mindlessly use the phrase “including but not limited to” or “without limitation” thinking that you are safe.
Including but not limited to sample
It’s helpful to understand the meaning of “including but not limited to” using a legal example.
Let’s look at how this phrase can be used in a contract:
Party A shall abide by relevant laws and regulations including, but not limited to (1) Data protection laws, (2) Intellectual property laws, and (3) Contract laws
Another example can be the following:
“Advertising Materials” means the information and content designed by the Service Provider including, but not limited to, digital graphics and images, digital banners, videos or other digital advertisements.
Including but not limited to FAQ’s
Is there a comma before the word including?
Typically, the recommended punctuation is that you do not put a comma before the word including but one after it.
For example:
“Advertising Materials” means the information and content designed by the Service Provider including, but not limited to, digital graphics and images, digital banners, videos or other digital advertisements.
The comma is used to isolate “but not limited to” allowing you to present a list that is included in what you are stipulating.
What does without limitation mean in law?
The phrase “without limitation” is used to indicate that even though you are presenting a list or given examples, you do not intend to limit the scope of the contractual provision.
For example:
The contractual obligations herein shall apply to Party A and employees or third parties acting on behalf of Party A including, but not limited to, its subcontractors, agents, consultants and representatives.
What you are suggesting here is that you want the contractual obligations to apply to Party A, its employees and all third parties acting for the benefit of Party A.
To clarify what you mean by those third parties acting on behalf of Party A, you list subcontractors, agents, consultants and representatives.
However, your goal is not to limit the interpretation only to subcontractors, agents, consultants and representatives and you want others to be included such as “service providers”, “lawyers”, “accountants” or others acting on behalf of Party A.
