Many of us are taught as we grow up that if we are going to do something, we should do it right. “Right” can mean a variety of things, depending upon the context.
Participating in a sport right includes sportsmanship and commitment to team. Doing our occupation right includes putting in an honest day’s work for an honest day’s pay. Much of the time, doing something right really means doing that something completely to the best of our ability.
In the legal world, the responsibility to do things right certainly applies to written laws and contracts. The principle is embodied in an old latin phrase, expression unius est exclusion alterius. That phrase means that if one thing is mentioned and another thing is not mentioned, the other thing is meant to be allowed just as if the other thing is listed as being expressly allowed.
For example, a law may simply state that no vans can use a particular alley. That law makes no mention of cars or pickup trucks. In that case, the law may be specifically interpreted to state that cars and pickup trucks can definitely use that particular alley.
Likewise, in contracts, the same principle applies. A person may sell another person a parcel of land near the seller’s house. The seller may have the buyer agree to not construct a hog building on the land with no other prohibitions on the land’s use. In that instance, there is a good chance that the contract will be interpreted to mean that chicken houses and cattle barns are definitely allowed on the land.
Due to this principle, attorneys often use the phrase, “including but not limited to.” This language is designed to make it clear that the list of items that are identified are simply examples and are not the exclusive/only items covered by the rule or agreement.
However, using “including but not limited to” can be too broad sometimes. For instance, a farmland lease may say that the tenant cannot raise specialty crops, including but not limited to hemp, tomatoes, cucumbers and genetically modified canola. The struggle becomes determining what is and what is not a specialty crop. Are organic soybeans a specialty crop? It gets worse if one of the “examples” is not a specialty crop. For instance, what do all the words mean if genetically modified canola is not a specialty crop under almost any definition?
Due to this apparent challenge, attorneys are tasked with having to invest a significant amount of time and thought into understanding their clients’ deepest desires and biggest concerns. Then, just as much focus is required to draft comprehensive written agreements that are neither too narrow nor too broad. To strike that balance, attorneys can sometimes draft documents that are wordier and more complicated than clients expect.
Ultimately, the law provides that if a government or person wants to change the default laws or rules with new ones, the government or person seeking the change is required to be precise (do it right).
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.