I never said you couldn’t: Difference between revisions

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-A kind of [[profound ontological uncertainty]] which leads to proliferating [[incluso]]s and [[for the avoidance of doubt]]s, is the [[Mediocre lawyer|lawyer]]'s reluctance to grasp a simple proposition: ''You don’t have positively document what you are not obliged do in a legal contract''. In the absence of a contract you are not obliged to do ''anything''.
+{{a|plainenglish|[[File:Nasty.jpg|450px|thumb|center|Dishwashing liquid, anyone?]]}}{{I never said it was}}
-Which brings us to Nasty. {{video nasty}}
+Your starting point, therefore, should be that you should ''not'' say what you are not going to do. Because that perversely, might be taken as implying you ''have'' agreed to do something else you forgot to rule out. To make this sound more serious, we have made up a Latin maxim for it:<ref>Our [[Secret Latin advisor]] has not checked this yet so all responsibility is mine.</ref>
-This is the lawyer's take on that old philosophical adage: [[the onus of proof is on the person making an existential claim]].
+''[[Non dixi quod factum ita]]''
-A general approach which might fortify you should you wish to strike inclusos from your documents: imagine trying to argue the counter-proposition before a court, without wanting the ground open up and swallow you.
+The trick comes with trying to peg back a vague, general positive commitment:
+:“The chargor will take all practicable steps to assist the chargee in registering the charge”
+by using specific restrictions to rein it in:
+:“[[for the avoidance of doubt]] in doing so the chargor [[shall]] not be [[obligated]] to breach, transgress or contravene, [[as the case may be]], any statue, law or regulation.”
-“Your honour, it says “in writing”. But the defendant only sent me an email!” <br>
+Of course, the [[prose stylist|prose stylists]] amongst you — all right, my little contrarians, admit it: ''there are none'' — might prefer to draft ''sans doubte'' in the first place.
-“I see. And how did the defendant communicate the message?” <br>
+===Nasty===
-“well, it was in the email.” <br>
+Which brings us to ''Nasty''. {{video nasty}}
-“And was the email in the form of an animated GIF or something?” <br>
-“No.” <br>
-“Was it a depiction of a series of pictures of semaphore flags spelling out a message?” <br>
-“No, m’lud.” <br>
-“How was it articulated, Mr. [[Amwell J|Amwell]]? Speak up, I can’t hear you.” <br>
-“It was in words, your honour.” <br>
-“Words?” <br>
-“Yes. Words.” <br>
-“And are you suggesting that words spelling out a message, contained in a purely electronic medium, these are somehow not writing?” <br>
-“Permission to run for the hills, your honour.” <br>
-“Granted, Mr. Buxton. Flee!” <br>
+This is the [[legal eagle]]’s take on that old philosophical adage: [[the onus of proof is on the person making an existential claim]]. Here is a thought experiment to fortify your resolve to strike [[incluso]]s from your documents: imagine trying to argue the counter-proposition before a court, without willing the ground open up and swallow you.
-{{plainenglish}}
+We can imagine the fun {{jbm}} would have in submissons:
+{{court scene|II|iv|stares winsomely at a an odd knot in the panel at the rear of the court, mutely resenting the human race’s inability to invent a good biro|rises suddenly, causing a rent in his trousers that sounds like a passing Ferrari. The Lord Justice blanches. Sir Jerrold clears his throat}}
+:'''{{jbm}}''': Your honour, it says “in writing”. But the defendant only sent me an ''[[email]]!'' <br>
+:'''{{cmr}}''': I see. And how did the defendant communicate with you, in that “email”? <br>
+:'''{{jbm}}''': Well, she — ahh — she sent me an ''email'', M’Lud. <br>
+:'''{{cmr}}''': So you say. And was the email in the form of on of those animated “GIFs” or something?<br>
+:'''{{jbm}}''': No, sir. <br>
+:'''{{cmr}}''': Was it in the form of a series of depictions of semaphore flags which, when taken together, conveyed the message without using visually identifiable words, as such? <br>
+:'''{{jbm}}''': It was not, M’Lud. <br>
+:'''{{cmr}}''': Well, then how ''was'' it articulated, {{jbm}}?
+:''Inaudible mumbling.'' <br>
+:'''{{cmr}}''': Speak up, {{jbm}}, I can’t hear you. <br>
+:'''{{jbm}}''': It was in ''words'', your honour. <br>
+:'''{{cmr}}''': “[[In writing]]” then, wouldn’t you say, {{jbm}}?
+:'''{{jbm}}''': In “''words,''” perhaps. I would say “words”.
+:'''{{cmr}}''': “Words?” <br>
+:'''{{jbm}}''' (''brightening''): Yes, M’Lud. “Words.” <br>
+:'''{{cmr}}''': And are you suggesting, {{jbm}}, that “words”, spelling out a message, albeit contained in a purely [[Electronic messaging system|electronic medium]], somehow do not amount to “writing”? <br>
+:''A dark pall passes over {{jbm}}’s face.''
+:'''{{jbm}}''': Permission to run for the hills, your honour. <br>
+:'''{{cmr}}''': Granted, {{jbm}}. Flee! <br>
+==={{casenote|Greenclose|National Westminster Bank plc}}===
+All this ribaldry is all well and good but we should mention curious case of ''[[Greenclose]]'', which is held that section {{isdaprov|12}} of the {{isdama}}, which provides several methods by which a party “[[may]]” communicate under that {{isdama}} should be interpreted to exclude any other means of communication — in other words as a “must”. More on that in the [[Greenclose v National Westminster Bank plc - Case Note|case note]] and in our article on section {{isdaprov|12 }} of the {{isdama}}
+{{sa}}
+*[[Culpa in contrahendo]]
+{{ref}}