LawProse Lesson #227: Part 2: “Including but not limited to”

After last week’s lesson about defining including to mean “including but not limited to” in legal instruments, several lawyers responded inviting further commentary. One correspondent took up my challenge: “I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive listing.” He cited Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 834-835 (7th Cir. Ill. 2002). In this case, the court was trying to interpret a provision in a financing statement with multiple modifiers, one of which was including but not limited to. It described the security interest as: “All inventory, including but not limited to agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor by Van Diest Supply Co. whether now owned or hereafter acquired, including all replacements, substitutions and additions thereto, and the accounts, notes, and any other proceeds therefrom.” The Seventh Circuit (per Wood J.) said that this was “a textbook example of ambiguous language: a term (all inventory) is followed by a qualifier (including all . . .) and then another (sold to Debtor by Van Diest).” After citing the rule of the last antecedent, the court declared the sentence ambiguous because it wasn’t clear whether it applied to only the inventory sold by Van Diest or extended to all the Debtor’s inventory. The court then construed the whole contract and found that “[N]othing within it bears on the intended scope of the phrase ‘including but not limited to agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor by Van Diest Supply Company.’ Van Diest could have acquired a security interest in everything that Hennings owned in inventory (as it had done, for instance, with the 1981 security agreement), or it could have limited its interest to the goods it supplied to Hennings [the Debtor]. Without resort to other interpretive principles or to outside evidence, such as evidence of custom in the trade, it is impossible for a court to decide which reading the parties intended to adopt.” In this case, the court couldn’t decide whether the phrase was exhaustive or not, so it doesn’t quite meet the challenge. Other correspondents suggested that the entire reason for adding “but not limited to” after the word including is to overcome a maxim of interpretation: Inclusio unius est exclusio alterius—which in Latin is better known as Expressio unius est exclusio alterius. (In legal literature, expressio unius is more than 15 times as common as inclusio unius.) In English this is known as the negative-implication canon. It holds that if you say certain things you implicitly negate other things. For example, “We offer loans to those with good credit” means, by implication, that we don’t offer loans to people with bad credit. Or: “Let’s have seafood tonight” means the speaker probably doesn’t want beef or poultry. But in truth, the phrase including but not limited to isn’t intended to overcome this canon at all. The etymological association of inclusio with including is a misleading one. Including itself is presumed to introduce a nonexhaustive list. And tacking on but not limited to is merely a belt-and-suspenders approach. That’s why the Latin maxim is better phrased as expressio instead of inclusio: by expressing (or including) the idea of seafood in the statement about dinner, the speaker is excluding other things. Of course, the negative-implication canon is merely a rule of thumb. It’s subject to commonsense contextual readings. But sometimes it’s quite handy. The multivolume Words and Phrases includes more than 200 cases invoking the expressio unius est exclusio alterius maxim. And it’s hardly limited to those cases. Next week: rule of thumb—an objectionable phrase?   Further reading: Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107-11; 132-33; 225-33 (2012). Black’s Law Dictionary 701 (10th ed. 2014).