For what it’s worth, I disagree. I’ve seen people make the argument that “including” should be read to limit. And I’ve seen a lot of really stupid judges.
But in any event, you can replace “including but not limited to” with “including” in my earlier post and my point stands.
And by the way, I would love to see an example of a contract where the phrase “including without limitation” rendered the contract unenforceable.
And I’m also waiting for InvisibleWombat’s redrafting.
In contacts, when the terms are defined (such as “the insured” means the person who has purchased insurance for atomobile accident liability), why don’t they just state: “the purchaser of the insurance” or something like that? One of the problem with FEMA is that its charter was drafted by government lawyers. Its 450+ pages are written in such convoluted style, that nobody knows what FEMA is actually supposed to do.
Using your definition, if your mom purchases the insurance for you, she’s the insured, not you. You also don’t know all the facts – what other lawsuits have said, etc.
It’s been said before, although it seems no one listens: yes, it might look like the contract is long, but ultimately the contract usually is clearer, because there is less wiggle-room in the language.
Your earlier post responded to my comment that a list of items can be read restrictively by saying that you could eliminate that possiblity by including, “including, but not limited to.” It seems to me that “but not limited to” was the good stuff, in your mind. And I don’t necessarily agree 100% with the quoted material. My point was simply that not just “any competent lawyer” would include that language. Some don’t think it helps at all.
I prefer, “for example” to “including,” you can’t really claim that examples can be read as a complete list. But you’ll still run into the interpretive rule that whatever you left out has to be similar to the things you included, and a judge or jury will ultimately decide what is similar and what is not.
Me too. 
Here is a story of some drafting gone wrong. Not directly on point, though. My father represents doctors. He does their corporate work and their pensions. He represented a long-time client on dissolution of a partnership. He had another lawyer from a big commercial firm working with him.
They wanted to make clear that the deal struck was a settlement of all issues arising from the partnership and the dental practice. But there was a rub. The partners had another partnership of sorts: they had some real estate investments and a contract (some computer thing that I never got the background on) that generated a stream of income over time. So they wanted to carve those two items out of the general release. But they worried, as we all do, about making the carve out too narrow. They wound up with a laundry list of exceptions that pretty clearly intended to include in the release all of the partnership-related items and exclude all of the other stuff. Great.
Then one of the partners got angry with my father’s client. Filed suit for $3000. The suit was not based on the real estate or on the computer stuff, but on a different agreement. The partners had a side-deal where they would order vitamins and other medical supplies through their pharmaceutical supplier for their own personal use, pay for them through the company, and then pay their shares of the costs when the invoice came. The angry dentist :eek: said my father’s client had not paid for some of those vitamins.
The carve out left them vulnerable to the claim, although the parties had pretty clearly intended any payments like that to be included in the dissolution deal.
Fortunately (or unfortunately) for me, the lawyer representing the angry dentist was not a commercial lawyer. He didn’t really appreciate the intricate contract law case that he had in hand (there was some fun stuff with the parol evidence rule and interpretive rules). As far as I could tell he was a malpractice attorney. He chose to try to run the meter with cheap tactics. When that failed he folded his tent and went home.
The release clause in the contract had the “including, but not limited to” formula in it, and that was one of the most damaging parts. It opened the door to the possibility that the written contract did not include the entire agreement, and also to the possibility that the carve out was bigger than the drafters had intended. While the language did not render the contract unenforceable, it almost made it useless, and because the purpose of the contract was to avoid litigation, it pretty much rendered it useless.
You seem to have abandoned your earlier position about 15th-century legal writing and leglislators’ conspiracies to provide employment for other lawyers. In the face of what was posted after you, I don’t blame you.
You have, however, retreated to an equally false position. FEMA, being Federal agency, is defined in the United States Code, specifically Title 6 section 317:
Admittedly, there are a few references to other sections of the US Code and a few Executive Orders, but there’s no possible way that you can claim it is incomprehensible to the ordinary person. That’s not even one page, never mind over 450. If you want to object that what I posted isn’t the “FEMA Charter,” 1) There is no such document (check for yourself, if you wish), 2) The definition of their role from Congress is what matters in any legal sense. Even the entire Strategic Plan (warning! PDF) is only 67 pages.
Either way, you are drafting with the aim of making it so that a list of examples will not be read restrictively. To avoid the very problem you initially claimed:
I believe that this problem can be avoided by using “including, but not limited to” (or perhaps “included”). I’m not sure what your position is.
Well, you’re the one who supplied the quote.
Another problem is that if you need to make changes in the document, it’s a lot easier to change one definition than to make lots of changes throughout the document.
In many ways this is similar to computer programming. If you are writing a computer program to handle a database, and the maximum number of letters in one particular field is 100, it’s much more sensible to define a constant, MAXNUMLETTERS or something like that, and set it equal to 100 at the beginning of the program. Rather than have the number “100” appearing at numerous different places throughout the program.
I have not forgotten about this thread, but I have a major deadline on Thursday. I must finish writing that before I come back to redrafting laws for entertainment. So, in the immortal words of the Governator: I’ll be back.
Still waiting . . .
There’s a real basic reason why a defendant always needs a lawyer, and even if the law were simplified to the ten comandments, it would still hold.
A defendant needs to appear sombre and serious and NOT like someone who is making up excuses. As long as the attorney is the one making excuses, it is understood that it’s his job. An argumentative and defensive defendant seems much less credible than an attorney who, having heard the defendant’s story, is arguing on the defendant’s behalf.
It’s that basic, emotional/human need of separation between the interested party and the spokesperson that gives rise to the old phrase about a lawyer representing himself having a fool for a client.
That’s my theory.
esq.
I agree. That’s also the reason why a top professional athlete should have an agent negotiating his salary.
You can decline the use of a lawyer and represent yourself. . .
Good luck with that.