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[[Remedies Cumulative - ISDA Provision| | [[Remedies Cumulative - ISDA Provision|Over ]] the centuries the [[common law]], as we know, has done a fine job of shaping and polishing a merchant’s remedies for [[breach of contract]]: — remedies which are, broadly, indifferent to what the contract happens to say. | ||
The reason for that is simple: by the time a merchant comes to ask about its rights upon breach, the instrument that conferred them is ''broken''. | |||
Fruity expectations of a healthy, long and fecund forward relationship lie suffocating upon the salted earth. The contract is the proverbial “ex parrot”: it is no longer a reliable guide to how one should expect the other to behave. The defaulter is a defaulter and cannot be relied upon to do what she promised to do. So, nor is the aggrieved party be expected to carry on doggedly popping coppers in the slot: the [[common law]] asks that she conducts herself reasonably and with good faith in the circumstances; it does not demand a total want of common sense. | |||
The sacred pact having fractured, it is for the court to draw upon its centuries of analogy to put the matters right. | |||
It does that by reference to its own principles, not the contract’s: [[causation]], [[contributory negligence|contribution]], [[Remoteness of damage|foreseeability]] and [[Indeterminate liability|determinacy]] of loss. the court applies these to the deal the suitor ''thought'' it had to work out a juridical compensation for its loss of bargain. | |||
That is the magnificent furniture the laws of England bestow upon us. It seems counterproductive — passive aggressive, almost — for a party to insist, in detail, on what should happen its customer does not do it promises to do. Bloody-minded, almost. | |||
Where the contract involves a bank, though — especially one that is lending you money — it is ''de rigueur''. Banks like to rule out doubt, help themselves to extra rights: [[lien]]s, [[set-off]], [[Close-out netting|netting]] of liabilities — | |||
Revision as of 07:52, 3 July 2023
Over the centuries the common law, as we know, has done a fine job of shaping and polishing a merchant’s remedies for breach of contract: — remedies which are, broadly, indifferent to what the contract happens to say.
The reason for that is simple: by the time a merchant comes to ask about its rights upon breach, the instrument that conferred them is broken.
Fruity expectations of a healthy, long and fecund forward relationship lie suffocating upon the salted earth. The contract is the proverbial “ex parrot”: it is no longer a reliable guide to how one should expect the other to behave. The defaulter is a defaulter and cannot be relied upon to do what she promised to do. So, nor is the aggrieved party be expected to carry on doggedly popping coppers in the slot: the common law asks that she conducts herself reasonably and with good faith in the circumstances; it does not demand a total want of common sense.
The sacred pact having fractured, it is for the court to draw upon its centuries of analogy to put the matters right.
It does that by reference to its own principles, not the contract’s: causation, contribution, foreseeability and determinacy of loss. the court applies these to the deal the suitor thought it had to work out a juridical compensation for its loss of bargain.
That is the magnificent furniture the laws of England bestow upon us. It seems counterproductive — passive aggressive, almost — for a party to insist, in detail, on what should happen its customer does not do it promises to do. Bloody-minded, almost.
Where the contract involves a bank, though — especially one that is lending you money — it is de rigueur. Banks like to rule out doubt, help themselves to extra rights: liens, set-off, netting of liabilities —