Includes But Is Not Limited To

Includes But Is Not Limited To: Decoding the Legal Catch-All Phrase

The phrase “includes but is not limited to” is a cornerstone of legal, contractual, and technical drafting, yet it is frequently misunderstood and misapplied by those outside the profession. Plus, its correct use is fundamental to drafting reliable agreements, clear policies, and precise specifications that can withstand scrutiny and adapt to future circumstances. At first glance, it seems like simple, redundant wording. In reality, it is a powerful and deliberate tool designed to create flexibility and prevent unintended exclusions. Misuse, however, can lead to ambiguity, disputes, and unenforceable terms. Understanding this phrase is not just for lawyers; it is essential for business owners, content creators, policymakers, and anyone who needs to define a category with both specificity and openness.

The Core Meaning and Legal Purpose

The phrase operates on a simple but critical two-part logic. The word “includes” introduces a non-exhaustive list. It legally transforms the list from a closed set to an open one. It explicitly states that the items following it are examples within a broader category. Here's the thing — ”** This negates any implication that the list is complete or exclusive. The crucial part is **“but is not limited to.The drafters are saying: “These are the prime examples we can think of now, but the concept absolutely covers other, similar, or foreseeable items we haven’t specifically listed.

This structure is a direct application of the legal principle of ejusdem generis (of the same kind), but with a twist. And Ejusdem generis traditionally holds that general words following specific ones in a list should be interpreted as referring only to items of the same general type as the specific ones. And by using “includes but is not limited to,” the drafter intentionally overrides the strict ejusdem generis rule. Now, they are signaling that the general category is meant to be broader than the specific examples provided, allowing for items that might not fit perfectly into the “same kind” but are still within the intended scope. It is a drafting technique to avoid the “closed list” interpretation that courts might otherwise apply.

How It Functions in Real-World Documents

This phrase appears everywhere, serving the same fundamental purpose across diverse fields.

1. Contracts and Agreements: In a service contract, a scope of work might state: “The Services include, but are not limited to, website design, SEO optimization, and monthly performance reports.” This protects the service provider from a client arguing they are only entitled to those three listed items if, for example, a new social media platform emerges requiring a new strategy. It also protects the client, ensuring the provider cannot later claim that basic hosting or security updates are outside the scope because they weren’t listed.

2. Intellectual Property (IP) Licenses: An IP license might grant rights to use the licensed material “in any and all media now known or hereafter devised, including but not limited to print, digital, and broadcast formats.” This is critical in a rapidly evolving technological landscape. A license written without this phrase in the 1990s might not cover streaming or mobile apps. The phrase future-proofs the grant.

3. Company Policies and Employee Handbooks: A code of conduct might prohibit “harassment, including but not limited to verbal, physical, and visual harassment.” This ensures the policy covers new forms of harassment that may develop, such as cyberbullying via non-company platforms, even if not explicitly conceived when the policy was written. It prevents employees from claiming a loophole because their specific action wasn’t on the list.

4. Technical Specifications and RFPs (Requests for Proposals): A software requirement might state: “The system must support all major browsers, including but not limited to Chrome, Firefox, Safari, and Edge.” This tells bidders that while these are the current major browsers, the solution must be compatible with any browser that achieves similar market prominence in the future. It avoids the need to constantly amend the RFP.

5. Legal Statutes and Regulations: Legislators use it to define terms broadly. Here's a good example: a law regulating “financial instruments” might define them as “including but not limited to stocks, bonds, derivatives, and futures contracts.” This allows regulators and courts to apply the law to novel financial products that don’t fit neatly into the traditional categories.

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The Critical Danger: Vagueness and Unenforceability

The phrase is a tool, not a magic wand. But its power depends entirely on the clarity of the introductory category it modifies. The phrase itself does not define the category; it only says the list isn’t exhaustive. If the introductory language is vague, the entire provision becomes unacceptably vague and may be deemed unenforceable for lack of reasonable certainty.

Consider the difference:

• Bad: “The Contractor shall provide various services, including but not limited to marketing, consulting, and support.” Here, the core category (“business development and operational support services related to the Client’s e-commerce platform”) provides a clear, objective boundary. ” What does “various services” mean? Even so, * Good: “The Contractor shall provide business development and operational support services related to the Client’s e-commerce platform, including but not limited to digital marketing strategy, supply chain logistics consulting, and customer service workflow design. A court might strike it down. This is too vague. The list gives concrete examples within that boundary, and the phrase confirms the boundary is open to other, similar services.

The danger is that a party might use a vague category with “includes but is not limited to” to try and claim something utterly unrelated falls within its scope, leading to a “catch-all” abuse. Now, courts will interpret such clauses against the drafter (contra proferentem) and require that any item claimed to be included must have a reasonable relationship to the stated category and the listed examples. It cannot be completely alien.

Best Practices for Effective Use

To harness the phrase’s utility without inviting ambiguity, follow

these best practices:

• Define the Core Category Clearly: Prioritize a precise and unambiguous definition of the overarching category. This is the foundation upon which the entire provision rests. Spend the most effort here.
• Provide Specific Examples: Supplement the core category with concrete examples that illustrate the intended scope. These examples should be representative and not overly exhaustive – the “but not limited to” part is crucial.
• Maintain a Logical Connection: Ensure a clear and logical connection between the core category, the examples, and any additional items claimed to be included. The relationship should be demonstrable and justifiable.
• Avoid Overly Broad Categories: Resist the temptation to use excessively broad categories like “services,” “goods,” or “materials” without further qualification. These are almost guaranteed to invite disputes.
• Consider Alternative Language: Explore alternative phrasing that achieves the same goal without relying on “includes but is not limited to.” Sometimes, a more direct and specific description is preferable.

Conclusion

The “includes but is not limited to” phrase is a valuable tool for legal drafting, offering flexibility and adaptability in defining scope. Even so, its effectiveness hinges entirely on the clarity and precision of the introductory category it modifies. Also, without careful consideration and diligent application of best practices, this seemingly simple construction can easily devolve into a source of ambiguity, litigation, and ultimately, unenforceability. That's why, drafters must approach its use with caution, prioritizing a dependable and well-defined core category supported by relevant examples and a demonstrable logical connection – ensuring the phrase serves as a guide, not a gateway to legal uncertainty.