Stop using “means and includes”, now!
The expression, commonly used in contracts, is a logical contradiction.
I am sure you’ve come found the expression “means and includes” used in some contract. A typical example would look something like this (this one’s taken from a mortgage deed):
In this contract, the term “mortgagor” means and includes the first party to this deed and her legal heirs, successors, representatives, administrators, executors, assigns, etc.
Here’s the problem with an expression like this: “means” and “includes”, in law, mean two contradictory things.
The Contradiction
The expression “means” is exhaustive, but the expression “includes” is only indicative and non-exhaustive.
(i) “Means”:
Consider this definition:
(c) “delivery” means any conduct of the carrier which has the effect of putting the consignment in the possession of the consignee;
Consequently, in this contract, the expression “delivery” in any and every case will have the meaning attributed to it above alone, nothing else. The door is closed for “delivery” to have any other meaning in this contract.
(ii) “Includes”:
Now consider this alternative definition:
(a) “carriage” includes cars, trucks, motorcycles, trains, aircrafts, and ships;
Consequently, it is clear that, in this contract, the term “carriage” definitely encompasses within its scope, cars and trucks and motorcycles and trains and aircrafts and ships. However, due to the presence of the qualifier “includes” in the definition, the door is left open for the term “carriage” to mean much more than the 6 meanings specifically attributed to it in the definition. Thus, “includes” definition are always, only inclusive and non-exhaustive.
(iii) Synthesis
The contradiction thus becomes clear. The qualifier “means” makes a definition exhaustive, whereas the qualifier “includes” makes a definition non-exhaustive.
If a definition uses both the qualifiers “means” and “includes”, it purports to create a definition which is both exhaustive and non-exhaustive at the same time! Surely, that is logically impossible.
Suggestions for Reform
This one’s quite simple: just get rid of using the expression “means and includes” entirely!
Which one should you use then? Well, that depends on what sort of definition you want. If you want an exhaustive definition, use “means”. But if you want only an inclusive and non-exhaustive definition, use “includes” to leave the door open for further interpretations. Two examples will clarify this further.
(i) Example #1
For instance, I want the term “carriage” to mean a very particular thing in the contract I’m drafting (to the exclusion of all other possible interpretations). I use the qualifier “means” to come up with this definition:
(a) “carriage” means the entire period of time the consignment is in the possession of the carrier;
(ii) Example #2
On the other hand, I also want to define the term “instantaneous means of communication”. However, this time I only want an indicative, but not exhaustive, definition. So I use the qualifier “includes” to come up with this definition:
(f) “instantaneous means of communication” includes phone, SMS, email, and online instant messaging services;
By using “includes”, I have deliberately left the definition open-ended. As a drafter, I want the term “instantaneous means of communication” to encompass any mode of communication which allows effectively instantaneous communication, including those which may come into use in the future during the term of this contract which I’ve been unable to foresee today. That’s why I have used the qualifier “includes”.
(iii) The Bottom Line
To sum up, here’s a take-home one-liner:
Use the qualifiers “means” or “includes” as and when appropriate, but never both at the same time.
