The ejusdem generis rule

6.7.1 The rule

Case law is littered with examples which illustrate the difficulties which can arise when the ejusdem generis rule is applied in the construction of a clause in a legal document. It is for this reason that the provisions of a document should be drafted so as to avoid its application. In Lyndon v Standbridge (1857) 2 H & N 45, Pollock CB explained the rule in the following terms:

It is a general rule of construction that where a particular class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words

treated as referring to matters which are ejusdem generis with such class.

For example, if a testator made a gift in his will in the following terms:

I leave all my china, plate, furniture, pictures and other household items at 50 Green Street to my son, Fred,

the words ‘other household items’ would be construed as ejusdem generis with the class of objects described, namely, ‘china, plate, furniture, pictures’ and items in this class would be included in the gift. Thus, glassware and carpets would be included, as they are in the same class as household items, but business equipment such as computers and documents would not be included. In this example, the general words only avoid the accidental omission of one of the objects of the kind mentioned which could occur if it was sought to draft the gift in exhaustive terms.

6.7.2 Limits of the rule

There are some limits on the application of the ejusdem generis rule. The courts have held that it will not be applied in the construction of a document in certain circumstances. However, these exceptions ought not to be relied on in drafting a document, as it may be open to argument whether circumstances for excluding the effect of the rule have arisen. The rule will not apply in the following cases.

(a) No class of objects mentioned

The rule can only apply if the list of items which is followed by general words have a common characteristic which constitutes them a class or genus so that all other things of the same class or genus are swept in by the general words. For example, in SS Magnhild v Macintyre [1920] 3 KB 321, the rule was not applied to a provision excluding liability for loss of time from deficiency of men or owner’s stores, breakdown of machinery or damage to hull, or other accident preventing the work of the steamer, since these items did not form a class or genus.

(b) Class or genus is exhaustive

The rule will not be applied where the class or genus mentioned is exhaustive. In these circumstances, the general words will be regarded as referring to some larger class or genus.

(c) Commercial documents

The rule may be applied less restrictively in commercial documents.

In Chandris v Isbrandsen-Moller Co Inc [1951] 1 KB 240, a charterparty provided that cargo was to consist of lawful general merchandise

‘excluding acids, explosives, arms, ammunition and other dangerous cargo’. The question arose as to whether a cargo of turpentine was included in the prohibition. Devlin J examined the rule in detail, and concluded that it did not apply to commercial documents:

Theejusdem generis rule means that there is implied into the language which the parties have used words of restriction which are not there. It cannot be right to approach a document with the presumption that there should be such an implication. To apply the rule automatically in that way would be to make it the master and not the servant of the purpose for which it was designed – namely, to ascertain the meaning of the parties from the words they have used ... Moreover, the main argument of construction which justifies the application of the rule does not apply in commercial documents. It is that if the general words have an unrestricted meaning the enumerated items are surplusage. The presumption against surplusage is of little value in ascertaining the intention of the parties in commercial documents, as many great judges have recognised. In Burrell and Sons v F Green and Co [1914] 1 KB 293 Bailhache J said that he was unimpressed with the argument of redundancy ‘because charterparties contain many redundant words’.

(d) Wills

The ejusdem generis rule will be overridden by the presumption that a person who makes a will does not intend to die intestate as to any part of his property and, therefore, the will must be construed to prevent that result. See Bridges v Bridges (1729) 2 Eq Cas Abr 330.

6.7.3 The rule is not a cure for poor drafting

The ejusdem generis rule is intended to guard against accidental omissions and it cannot be a cure for poor or inadequate drafting. If a clause is drafted without considering all the events which it may be needed to cover, or fails to set out a sufficiently wide class or genus in relation to the wider general words, or the wider general words are not wide enough, the rule will not avoid these inadequacies. Several decided cases illustrate the difficulties which can arise. In Tillmanns and Co v SS Knutsford Co [1908] AC 406, a bill of lading provided that there would be no liability for failure to deliver a cargo at a port if it was, in the opinion of the master of the ship, unsafe to do so ‘in consequence of war, disturbance or any other cause’. The master failed to deliver cargo at a port because it was ice bound. This was held to be a breach of contract because failure to deliver to a port which was ice bound did not fall under the clause. The words ‘any other cause’ had to be construed ejusdem generis with ‘war, disturbance’, as these referred to violent acts caused by man rather than acts of nature.

In Fenwick v Schmalz (1868) LR 3 CP 313, a charterparty required the defendant to load the plaintiff’s ship with coal ‘except in cases of riots, strikes or any other accidents’. The defendant failed to load the ship because of a snowstorm. The defendant was unable to rely on the clause because a snowstorm was not within the preceding genus which referred to violent acts of man – and it could not fall within the general words ‘any other accidents’ as it could not be described as an accident, but was a natural occurrence.

6.7.4 Dangers of examples

If a clause contains general words which either include or exclude something from its effect, there may be a temptation to add examples after the general words by way of illustration. Unless it is clear that the items referred to are only by way of example, the ejusdem generis rule may restrict the general words used in a way

which was unintended. This problem was referred to by Scott LJ in Beaumont-Thomas v Blue Star Line (1939) 3 All ER 127 as:

... the common and pernicious practice of cramming a contract with particular illustrations of some general stipulation, which in a legal sense are wholly unnecessary, and just because they are unnecessary often afford a pretext for limiting general words in a way that was never intended.

In Schloss Brothers v Stevens [1906] 2 KB 665, Walton J referred to the same problem:

It was said for the defendant that, if all risks were covered, why refer specially to risks of robbery with or without violence, negligence, etc? On the other hand, it is very common to find in such contracts, although perfectly general words are made use of, including practically all risks, special reference to particular perils to which it is desired to draw special attention.

6.7.5 Excluding the rule

Since the ejusdem generis rule can cause difficulties, it is advisable to avoid its possible application. There are several drafting devices which may be used to indicate that it is not to apply. In Chandris v Isbrandsen-Moller Co Inc [1951] 1 KB 240, Devlin J referred to some of these. He said:

Legal draftsmen are all familiar with the existence of the rule, and familiar too with the proper signals to hoist if they do not want it to apply. Phrases such as ‘whether or not similar to the foregoing’ and

‘without prejudice to the generality of the foregoing’ are often employed in legal draftership; and if the drafter has read the report of Larsen v Sylvester and Co [1908] AC 295 he will know that the addition of ‘whatsoever’ generally serves the same purpose.

Commercial draftsmen are not usually taught these rules.

Another method of excluding the rule is by setting out the class or genus in exhaustive terms, as indicated above.

6.8 Enumerations

6.8.1 Avoid enumerations

Enumerations of particulars should be avoided in drafting, even where the ejusdem generis rule is not applicable. It is difficult in many circumstances to make an exhaustive list of items, and, where this is possible, there is always the danger of accidental omission. Where an attempt is made to enumerate, an omission may be interpreted as deliberate exclusion under the maxim expressio unius exclusio alterius (that is, to express one thing is to impliedly exclude another). As Wills J said, in Colquhoun v Brooks (1887) 19 QBD 400:

... the maxim expressio unius exclusio alterius is one that certainly requires to be watched ... The failure to make the ‘expressio’

complete very often arises from accident, very often from the fact that it never struck the drafter that the thing supposed to be excluded needed specific mention of any kind ...

6.8.2 Illustration

The following example illustrates the problems which can arise where an enumeration is incomplete, and how these can be avoided. A bequest in the will by a testatrix which is intended to dispose of her jewellery might be in the following terms:

My watches, rings, necklaces and bracelets to my daughter, Ann.

If the list of items is exhaustive of the jewellery possessed by the testatrix, the bequest will have achieved its objective. But, if the testatrix also possessed several pairs of earrings, these may be taken to be excluded from the bequest, as would other jewellery such as hatpins, hairpins or tiaras. To avoid accidental omission, the safer course is to draft the bequest as:

All my jewellery to my daughter, Ann.

If the testatrix insisted that certain items should be listed as a matter of caution because she regarded them as her most important pieces of jewellery, the bequest could be drafted as:

All my jewellery including, but not restricted to, my watches, rings, necklaces and bracelets to my daughter, Ann.

In this case, theejusdem generis rule is a potential danger, and the clause should not to be drafted as:

My watches, rings, necklaces, bracelets and other jewellery to my daughter, Ann.