Including, but not limited to: Difference between revisions
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Revision as of 17:35, 26 August 2021
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Towards more picturesque speech™
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In The Young Ones,[1] 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.
See also without limitation, without limiting the generality of the foregoing, for the avoidance of doubt and all the other examples of ontological weakness.
Modern lawyers expend more energy that they should addressing the contingency that not only their clients, but the courts in arbitrating upon their commercial agreements, will adopt this kind of logic. The subordinate clause — known in some circles as an incluso[2] — beginning with “(including, but not limited to... )” speaks to this nervousness.
It is parenthetical of finest flannelette. As a matter of classical logic, it is incapable of adding anything other than (without limitation) heft, weight, drama, torpor, lassitude and/or irritation (as the case may be) to your draft.
Since the parenthetical can be stretched as far as your little imaginary legs can carry you, you can add as much heft as you like, with no fear of upsetting anything or anyone other than a prose stylist — and as we all know, there are few indeed of those amongst the cohort of legal eagles with whom one is forced to ply one’s trade.
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.