I never said you couldn’t

Towards more picturesque speech™ →Go uptown Dishwashing liquid, anyone? SEC guidance on plain EnglishIndex: Click ᐅ to expand: Plain English Drafting Metaphor Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

A deep self-doubt which begets inclusos and for the avoidance of doubts, is the lawyer’s reluctance to grasp a simple proposition: You don’t have say what you have not agreed to do in a contract. You don’t have to do anything you haven’t agreed to do. The same goes — a fortiori, even —for amendments.

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:

Non dixi quod factum ita

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.”

Of course, the prose stylists amongst you — all right, my little contrarians, admit it: there are none — might prefer to draft sans doubte in the first place.

Nasty

Which brings us to Nasty. In The Young Ones, just before The Damned kicked off a boisterous rendition of their punk classic Nasty, Mike and Vyvyan agonised over their failure to get their new video recorder working. It is a parable for today’s uncertain times.

Mike: Maybe you shouldn’t have poured all of that washing-up liquid into it.

Vyvyan: It says here, “ensure machine is clean and free from dust”.

Mike: Yeah, but it don’t say “ensure machine is full of washing-up liquid”.

Vyvyan: Well, it doesn’t say “ensure machine isn’t full of washing-up liquid”.

Mike: Well, it wouldn’t would it? I mean, it doesn’t say “ensure you don’t chop up your video machine with an axe, put all the bits in a plastic bag and bung them down the lavatory.”

Vyvyan: Doesn’t it? Well maybe that’s where we’re going wrong.

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 inclusos from your documents: imagine trying to argue the counter-proposition before a court, without willing the ground open up and swallow you.

We can imagine the fun Sir Jerrold would have in submissons:

Act II, Scene iv

A courtroom in the King’s Bench Division. Lord Justice Cocklecarrot M.R. 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. Sir Jerrold Baxter-Morley, K.C. rises suddenly, causing a rent in his trousers that sounds like a passing Ferrari. The Lord Justice blanches. Sir Jerrold clears his throat.

Sir Jerrold: Your honour, it says “in writing”. But the defendant only sent me an email!

Cocklecarrot L.J.: I see. And how did the defendant communicate with you, in that “email”?

Sir Jerrold: Well, she — ahh — she sent me an email, M’Lud.

Cocklecarrot L.J.: So you say. And was the email in the form of on of those animated “GIFs” or something?

Sir Jerrold: No, sir.

Cocklecarrot L.J.: 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?

Sir Jerrold: It was not, M’Lud.

Cocklecarrot L.J.: Well, then how was it articulated, Sir Jerrold?

Inaudible mumbling.

Cocklecarrot L.J.: Speak up, Sir Jerrold, I can’t hear you.

Sir Jerrold: It was in words, your honour.

Cocklecarrot L.J.: “In writing” then, wouldn’t you say, Sir Jerrold?

Sir Jerrold: In “words,” perhaps. I would say “words”.

Cocklecarrot L.J.: “Words?”

Sir Jerrold (brightening): Yes, M’Lud. “Words.”

Cocklecarrot L.J.: And are you suggesting, Sir Jerrold, that “words”, spelling out a message, albeit contained in a purely electronic medium, somehow do not amount to “writing”?

A dark pall passes over Sir Jerrold’s face.

Sir Jerrold: Permission to run for the hills, your honour.

Cocklecarrot L.J.: Granted, Sir Jerrold. Flee!

Greenclose v 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 12 of the ISDA Master Agreement, which provides several methods by which a party “may” communicate under that ISDA Master Agreement should be interpreted to exclude any other means of communication — in other words as a “must”. More on that in the case note and in our article on section 12 of the ISDA Master Agreement

See also

• Culpa in contrahendo