Definition
EXCEPTING is a drafting term used in deeds, contracts, and other legal instruments to carve out something from what is otherwise granted, conveyed, or described. When a grantor conveys property "excepting" a portion, that portion is withheld entirely from the transfer — it never passes to the grantee and remains with the grantor. More broadly, the term appears as a conjunction or participle in legal instruments to signal that what follows is excluded from the scope of what precedes.
In conveyancing, "excepting" is most often encountered alongside "reserving," and the two terms, though technically distinct, are frequently used interchangeably in practice.
---
Common Language
Modern common usage (Wiktionary): Present participle and gerund of "except" — i.e., the act of leaving out or excluding something.
Historical common usage (Webster's 1913): A preposition or participle meaning "with rejection or exception of; excluding; except." Used in ordinary speech to mean "other than" or "leaving out."
The gap between common and legal use is narrower here than with many legal terms, but it matters in context: in ordinary speech, "excepting" is merely informal exclusionary language. In a deed or contract, its placement and wording can carry precise legal consequences — determining whether title to something ever passes at all or whether a right is merely retained for limited use. A reader applying the everyday meaning without sensitivity to that distinction can misread what was actually conveyed.
---
Common Confusion
EXCEPTING vs. RESERVING: This is the central confusion in the law of conveyancing, and it is one the sources themselves acknowledge is widespread. Strictly speaking, an exception withholds from the grant something that already exists — a parcel of land, a mineral seam, a specific structure. Title to the excepted thing never passes; it remains with the grantor as if never included in the conveyance. A reservation, by contrast, creates a new right in favor of the grantor out of the thing being conveyed — a right of way, an easement, a life estate. The practical difference: an exception concerns a pre-existing thing carved out; a reservation concerns a new interest carved back.
Courts have repeatedly noted, however, that parties and even lawyers use the terms without this distinction in mind, and most jurisdictions will look to the substance and intent of the instrument rather than the label attached to the provision. Bouvier's confirms this directly: "the use of either term is not conclusive as to the nature of the provision."
---
Why It Matters in Research
Researchers working with historical deeds, land grants, or conveyancing records will encounter "excepting" with significant frequency, and the term's legal effect can only be assessed by reading it against its surrounding instrument — not in isolation. Three specific research traps arise:
First, because courts treat "excepting" and "reserving" as interchangeable in practice, a historical instrument using "excepting" may have been intended to create what modern law would call a reservation, and vice versa. The label does not settle the question; the substance does. Any corpus search that aggregates all uses of the term will return results spanning both functions.
Second, in older deeds — particularly colonial and early American land records — the term appears in boilerplate exceptions for roads, watercourses, or previously conveyed parcels. These routine appearances should be distinguished from substantive, contested exceptions that determined title.
Third, in contracts outside the conveyancing context, "excepting" is used as a general exclusionary conjunction (e.g., "all obligations hereunder, excepting those arising under Section 4..."). This usage tracks closer to the ordinary English meaning and carries less doctrinal weight, but researchers cross-referencing contract disputes should note whether the court treated the term as a formal exception or merely as qualifying language.
The encyclopedia entries on hearsay exceptions and the residual exception are thematically related — the concept of carving out excluded categories from a general rule — but those entries concern evidentiary doctrine rather than the drafting term itself. Researchers should not conflate the drafting function of "excepting" in instruments with the substantive legal doctrine of exceptions in evidence law, even though the same word underlies both.
---
Historical Dictionary Support
Bouvier's Law Dictionary provides the core formulation: "The words 'excepting' and 'reserving,' although strictly distinguishable, are often used interchangeably or indiscriminately, and the use of either term is not conclusive as to the nature of the provision." This is a candid acknowledgment that doctrine has failed to discipline actual practice, and it remains accurate today.
Bouvier's entry is brief and primarily cautionary rather than definitional — it flags the confusion rather than resolving it. What the historical sources do not fully address is the downstream consequence: when a court must determine whether an instrument created a true exception or a reservation, it turns to the entire instrument, parol evidence where admissible, and the circumstances of the transaction. The historical dictionaries leave this analytical framework largely to the treatises and case law.
Webster's 1913 confirms that the ordinary English meaning was already well established as "excluding" or "leaving out," consistent with the legal function but without the technical precision the law requires.
---
Jurisdictional Note
The distinction between exceptions and reservations, and the rules governing instruments that misuse the terms, varies by jurisdiction. Some states apply the strict technical distinction more rigorously than others, particularly in mineral rights conveyancing where the difference between what was excepted and what was reserved can determine whether the grantor or grantee owns valuable subsurface rights. Researchers working in oil and gas jurisdictions should treat the exception/reservation distinction as a live doctrinal question rather than a settled one.
---