I never said you couldn’t

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A deep self-doubt which begets inclusos and for the avoidance of doubts, is the lawyer’s reluctance to grasp a simple proposition: You don’t have say what you have not agreed to do in a contract. You don’t have to do anything you haven’t agreed to do. The same goes — a fortiori, even —for amendments.

Your starting point, therefore, should be that you should not say what you are not going to do. Because that perversely, might be taken as implying you have agreed to do something else you forgot to rule out.

The trick comes with trying to peg back a vague, general commitment, by using specific restrictions (for the avoidance of doubt). Of course, the literary-minded might prefer to draft clearly and precisely in the first place.

Which brings us to Nasty. In The Young Ones, just before The Damned kicked off a boisterous rendition of their punk classic Nasty, Mike and Vyvyan agonised over their failure to get their new video recorder working. It is a parable for today’s uncertain times.

Mike: Maybe you shouldn’t have poured all of that washing-up liquid into it.

Vyvyan: It says here, “ensure machine is clean and free from dust”.

Mike: Yeah, but it don’t say “ensure machine is full of washing-up liquid”.

Vyvyan: Well, it doesn’t say “ensure machine isn’t full of washing-up liquid”.

Mike: Well, it wouldn’t would it? I mean, it doesn’t say “ensure you don’t chop up your video machine with an axe, put all the bits in a plastic bag and bung them down the lavatory.”

Vyvyan: Doesn’t it? Well maybe that’s where we’re going wrong.

This is the lawyer’s take on that old philosophical adage: the onus of proof is on the person making an existential claim.

A general approach which might fortify you should you wish to strike inclusos from your documents: imagine trying to argue the counter-proposition before a court, without willing the ground open up and swallow you. Thus:

Act II, Scene iv

A courtroom in the King’s Bench Division. Lord Justice Cocklecarrot M.R. stares winsomely at a an odd knot in the panel at the rear of the court, mutely resenting the human race’s inability to invent a good biro. Sir Jerrold Baxter-Morley, K.C. rises suddenly, causing a rent in his trousers that sounds like a passing Ferrari. The Lord Justice blanches. Sir Jerrold clears his throat.

Sir Jerrold: “Your honour, it says “in writing”. But the defendant only sent me an email!”

Cocklecarrot L.J.: “I see. And how did the defendant communicate in that email?”

Sir Jerrold: “Well, she sent me an email.”

Cocklecarrot L.J.: “So you say. And was the email in the form of an animated GIF or something?”

Sir Jerrold: “No.”

Cocklecarrot L.J.: “Was it in the form of a series of depictions of semaphore flags which, when taken together, conveyed the message without using words?”

Sir Jerrold: “No, m’lud.”

Cocklecarrot L.J.: “Well, then how was it articulated, Sir Jerrold?

Inaudible mumbling.

Cocklecarrot L.J.: “Speak up, I can’t hear you.”

Sir Jerrold: “It was in words, your honour.”

Cocklecarrot L.J.: “Writing then, wouldn’t you say?”

Sir Jerrold: “No, your honour. Words.”

Cocklecarrot L.J.: “Words?”

Sir Jerrold: “Yes. Words.”

Cocklecarrot L.J.: “And are you suggesting that “words”, spelling out a message, albeit contained in a purely electronic medium, somehow do not amount to “writing”?”

Sir Jerrold: “Permission to run for the hills, your honour.”

Cocklecarrot L.J.: “Granted, Sir Jerrold. Flee!”