Ejusdem generis

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The ejusdem generis rule of statutory interpretation — which we contract hacks like when it suits us to extend by analogy into contractual interpretation — says wherever general words follow specific words, the general words should be read to include only objects similar in nature to those specific words.

So, “any uprising, riot, looting, organised disobedience or other civil commotion” would not include “ironic flash-mob performances of songs from The Sound of Music, however tiresome or poorly organised”, as long as not specifically violent in aspect (of course, there is every chance that passers-by would become spontaneously violent upon being confronted by an ironic flash mob).

Without limitation and ejusdem generis

“Without limitation” is surely tedious enough, but what is a legal eagle’s most sacred mission if is not to make the tedious tediouser?

In furtherance of that pursuit we recently spotted the following in that most saintedly over-vexed of all contracts, an NDA: a specific carve-out from application of the “ejusdem generis” rule when interpreting the contract:

“including (without limitation or application of the ejusdem generis rule) [ ... and here follows a long and tedious catalogue of the various existential forms that copyrightable data might be presumed to take, including some forms it in law cannot, such as raw data, and others you wish it could not, such as cat memes, GIFs and hot takes on Twitter] ... and any and all other information, howsoever described, inasmuch and insofar as it relates to the Discloser.”

(The ejusdem generis rule, for those who were asleep in their “statutory interpretation” tutorial, is a rule of thumb for interpreting legal lists. It says, “wherever, in a list, where general words follow specific ones, the general words should be read to include only objects similar in nature to the specific words”. So, for example, in the list “uprising, riot, looting, organised disobedience or other civil commotion”, “other civil commotion” would include Q-Anons storming the Capitol Hill, but not well-meaning European flash-mobs bringing Delft bahnhoff to a standstill with an ad-hoc performance from The Sound of Music, as long as not specifically violent in aspect, even though, in the abstract, hundreds of randoms gratingly joining in to the tune of Doe a Deer while you desperately try to deduce the right platform for the 14:35 to Interlaken Öst would certainly qualify as “a civil commotion,” and would justify spontaneous violence even if it did not, in oprdinary parlance, constitute it.)

Now excluding ejusdem generis is surely to take legal eaglery to extraordinary, self-contradictory lengths. For what is a laundry list of specifics for, if not to contextualise and meaningfully delimit the sorts of things that a draftsperson might have in mind? To curtain what might otherwise be a impossibly wide in application? If all you want is to capture “all information”, you just say “all information”, and be done with it: don’t trouble your counterparty with both a laundry list which Q.E.D., is patently redundant and an ejusdem generis carve-out, which underscores that fact.

See also

• Statutory interpretation
• Contractual interpretation
• Ejusdem generis
• Noscitur a sociis
• Generalia specialibus non derogant
• Fair, large and liberal
• And the JC’s own short-hand to the lot of them: non mentula esse
• without limitation
• The JC’s parable of the farmer and the sheep