Including, but not limited to
|Towards more picturesque speech™
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.
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 — 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.
- “including (without limitation or application of the ejusdem generis rule) data (including [ ... and here follows a long and tedious catalogue of the various forms that data can take concluding with cat memes, GIFs and any and all other information, howsoever described], inasmuch and insofar as it relates to the Discloser.”
This, of all places, in that most saintedly over-vexed of all agreements, a confidentiality agreement.
This, readers, is legal eaglery taken to an extraordinary, self-contradictory lengths. This is the legal eagle as farmer, cack-handedly counting her sheep. For what is the purpose of a laundry list of specifics in the first place, if not to somehow craft, contextualise or otherwise put some meaningful boundaries on a vague and indeterminate general expression which you fear might otherwise have impossibly wide application? If all you want is to capture “all information”, 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.
- The episode was Nasty, for details freaks.
- Admittedly, only mine, so far as I know.