In most legal and other contexts, the phrases "including but not limited to" and "including without limitation" generally mean the same thing. Both are used to ensure a list of items is understood as illustrative and not exhaustive. The purpose of both phrases is to prevent a narrow interpretation of a general category. Without them, a Latin legal principle called expressio unius est exclusio alterius (the expression of one thing is the exclusion of others) could be used to argue that the listed examples are the only items covered.
In the context of architects’ and engineers’ contracts with their clients these phrases, in essence, can easily expand the scope of professional services as they are troublesome (and open-ended) to say the least.
The Owner and Architect will enter into a Master Agreement to design and build the Project which includes, without limitation, a scope of services defined in Exhibit “A.”
Portions of this Agreement that the Parties agree apply or relate to the Engineer’s Services include, without limitation:
Following execution of this Agreement, the parties will meet to discuss issues affecting the administration of the Services and to implement the necessary procedures, including but not limited to those relating to electronic document protocols - Building Information Modeling (“BIM”).
SUBTLE DIFFERENCES
That being said, and drilling down, there are subtle differences between these two phrases.
Differences | Including but not limited to | Including without limitation |
Sense | Information are examples, along with related items which are inferred | Same |
Basis | Makes certain that the listed info can exclude interpretations by others | It is clear that the list is not absolute or complete |
Legal Result | Interpreting the phrase includes other examples | Exemplifying other items in a legal context |
Flavor | Informal and casual | More formal and has flavor of legalese in agreements |
The difference is primarily a matter of style and phrasing rather than a substantive legal distinction. The fact of the matter is, some legal drafting experts argue that both phrases are redundant because the word "including" inherently means the list is not exhaustive in everyday English. However, drafters often use these phrases as a "belt-and-suspenders" approach to avoid any potential ambiguity in litigation.
ALONG WITH THE SAME LINES
A design professional may not only state what is included in basic services, but also may create a list of services that are “excluded” in an agreement with their client. In DesignPro Insurance Group’s November 2024 risk management article “Excluded Professional Services from Architect & Engineering Agreements,” it is argued that if the design professional creates an “excluded” list of items, what may occur is something that is understood to be outside of a basic services is omitted from the list, and it would be presumed to be as included.
More importantly, “excluded” list of items can create disputes between the parties to the agreement, or a claim involving additional professional fees, especially when the client is inexperienced with procuring design consulting services. Expectations can easily be misaligned.
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About the Author of this Risk Management Building Block Article
As a risk manager for the last 20 years for the design profession, Eric O. Pempus, FAIA, Esq., NCARB has experience in professional liability insurance and claims, architecture, engineering, land use, law, and a unique background in the construction industry. Prior to risk management, he has 25 years of experience in the practice of architecture/engineering, and as an adjunct professor teaching professional practice courses at the undergraduate and graduate levels for 37 years at Kent State University’s College of Architecture & Environmental Design.
As a Fellow of the American Institute of Architects and AIA National Ethics Council 2021 Chair, he has demonstrated his impact on architectural profession. He has presented numerous loss prevention and continuing educational programs to design professionals since 2000 on topics of ethics, contracts, and professional practice in various venues across the United States and Canada. He is a former member and chair of his city’s Board of Zoning & Building Appeals for 24 years, and is a licensed architect, attorney, and property & casualty insurance professional.
His educational background includes a JD from Southwestern University School of Law, Los Angeles; Master of Science in Architecture from University of Cincinnati; and BA in psychology/architecture from Miami University, Oxford, Ohio.
The above comments are based upon DesignPro Insurance Group’s experience with Risk Management Loss Prevention activities and should not be construed to represent a determination of legal issues but are offered for general guidance with respect to your own risk management and loss prevention. The above comments do not replace your need for you to rely on your counsel for advice and a legal review, since every project and circumstance differs from every other set of facts.
Disclaimer: The viewpoints expressed in this article are those of the author(s) and are not necessarily approved by, reflective of or edited by other individuals, groups, or institutions and this article is an expression by the author to generate discussion and interest in this topic.