A contract lists five things. Then comes the word “including.” Then a fight about the sixth thing — the one that wasn’t listed. That fight has cost companies millions, and it always starts the same way: somebody assumed “including” meant “only.”
It doesn’t. Not by itself.
“Including” introduces examples. It does not close the list. That is the default rule in contract law, and it has a Latin name lawyers love to throw around: ejusdem generis — of the same kind. When a general phrase follows specific examples, courts read the general phrase as covering things of the same kind as the examples. So “vehicles, including cars, trucks, and motorcycles” does not automatically exclude a scooter. It invites the argument.
That is why drafters added three more words: “but not limited to.” “Including but not limited to” is the belt and the suspenders. It says, out loud, that the list is open. The examples illustrate; they do not fence in.
The trap runs both ways. A drafter who writes “including” thinking it limits the list has written an open door and called it a wall. A litigator who reads “including” and claims it covers everything under the sun has ignored the “same kind” limit — the scooter gets in, the airplane does not.
So say what you mean, and say it once:
– If the list is closed, write “including only.” Two words, no argument.
– If the list is open, write “including without limitation.” Three words, no argument.
– If you use “including” bare, know you have written an invitation to argue — and define it in the definitions section before anyone else defines it for you.
For thirty years I have trained lawyers that words cost millions. “Including” is one of the cheapest words in the contract and one of the most expensive in the courtroom. A list is only as closed as the word that introduces it.
Read the word. Then read it again. The list you think you closed may still be open.
Dena Falken — J.D., Columbus School of Law, Catholic University of America; B.A. in Law and Society, American University. Founder of Legal-Ease International. Author of Million Dollar Words: amazon.com/author/denafalken.com
