Should you use "including but not limited to"?

The phrase "including but not limited to" (and its cousins, "including without limitation" and the horribly burdensome "including but not by way of limitation") frequently sparks debate amongst authorities on legal writing.

At best this phrase is redundant. Including means, by definition, that words that follow are part of, but not all of, a set. At worst, this phrase can add another layer of unintended interpretation. Frustratingly, case law doesn't always uphold “but not limited to” as illustrative and not restrictive. (See Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832 (7th Cir. 2002), and others cited in Kenneth Adams' excellent post.) 

Since “but not limited to” does not guarantee the interpretation you’re after, why use it?

Some attorneys I work with have mentioned that they use including but not limited to as a way to reassure their clients that those particular things they want covered in a contract are mentioned explicitly; however, consider whether there is a more elegant way to achieve this. For example, toaster ovens, blenders, and other small kitchen appliances rather than small kitchen appliances, including but not limited to toaster ovens and blenders

The best approach is to carefully consider what including is introducing. Is it a “we really mean it” way to indicate the contract covers certain things that would obviously be considered part of a set, or are you specifying that the contract covers things that might not always be top of mind?

Consider the difference between the following:
1) All vehicles, including cars, trucks, motorcycles, motorscooters, boats, RVs, tractors, and ATVs, must stop.
2) All vehicles, including bicycles, must stop.
In (1), the list is so exhaustive that the fact bicycles are not mentioned leaves room to interpret the provision as not applying to bicycles (expressio unius est exlusio alterius). In (2) however, it would be difficult to believe a reasonable person would think trucks are not included in all vehicles.

If you would like a professional review of your contracts to address this issue, please contact us.