Corporate & Securities Law

?For Example?

By Ken Adams

When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios.

First, let’s consider including. It can be used to introduce a list of obvious members of the class in question, as in fruit, including oranges, lemons, and grapefruit?no one could argue that a lemon isn’t a fruit. But nothing would be accomplished by listing obvious members of a class, other than tempting a court to conclude that fruit in fact means citrus fruit.

A more constructive use of including is using it to bring within the scope of the class in question something that arguably isn’t part of that class, as in fruit, including tomatoes. This use of including would preclude unhelpful arguments about whether tomatoes are fruit or vegetables. And just as importantly, no court could conceivably announce that fruit means just tomatoes.

What bearing does this have on for example? For example can be used instead of including to accomplishes the first function of including described above, namely listing some obvious members of the class?fruit, for example oranges, lemons, and grapefruit. But it’s not up to serving the second function?fruit, for example tomatoes would probably seem a bit odd to the average reader.

Given that I recommend that you not use including in contracts to list obvious members of a class, it follows that I recommend you not use for example before lists of items.

But for example serves other purposes. It could, for instance, be used to introduce an example of how a given formula might operate.

(My full analysis of including without limitation is at MSCD 12.100. A preliminary version can be found in this blog post.)

Full post as published by AdamsDrafting on September 30, 2008 (boomark / email).