Template:Isda 9(a) summ: Difference between revisions
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What you see is what you get, folks: if it ain’t written down in the {{isdama}}, it don’t count, so no sneaky oral representations. But, ''[[anus matronae parvae malas leges faciunt]]'', as we | What you see is what you get, folks: if it ain’t written down in the {{isdama}}, it don’t count, so no sneaky oral representations. But, ''[[anus matronae parvae malas leges faciunt]]'', as we [[Latin]] freaks say: good luck in enforcing that if your counterparty is a [[little old lady]]. | ||
Note also that liability for a ''fraudulent'' warranty or [[misrepresentation]] won’t be excluded. So if your oral [[representation]] or [[warranty]] is a bare-faced lie, the innocent party can maybe still rely on it in entering the agreement, even if it isn’t written down, though good luck parsing the universe of possible scenarios to figure out when ''that'' qualification might bite. | Note also that liability for a ''fraudulent'' warranty or [[misrepresentation]] won’t be excluded. So if your oral [[representation]] or [[warranty]] is a bare-faced lie, the innocent party can maybe still rely on it in entering the agreement, even if it isn’t written down, though good luck parsing the universe of possible scenarios to figure out when ''that'' qualification might bite. | ||
Smart-arse point: A [[warranty]] is a contractual assurance, made as part of a concluded contract, and cannot, logically, be relied on by the other party when entering into the contract. An assurance on which one relies when deciding to enter into a | Smart-arse point: A [[warranty]] is a contractual assurance, made as part of a concluded contract, and cannot, logically, be relied on by the other party when entering into the contract. An assurance on which one relies when deciding to enter into a [[contract]] is a [[representation]]. | ||
==={{{{{1}}}|Confirmation}}s=== | ====={{{{{1}}}|Confirmation}}s===== | ||
“This {{isdaprov|Agreement}}”, courtesy of how it is defined in Section {{isdaprov|1(c)}}, includes the ISDA Master pre-printed form, {{isdaprov|Schedule}} ''and each {{isdaprov|Confirmation}} entered into under it.'' | |||
The [[entire agreement]] clause is legal boilerplate to nix any unwanted application of the [[parol evidence]] rule — to make sure one only cares for the four corners of the written agreement, and no extra-documentational squirrelling is allowed. Which might be a problem because the time-honoured understanding between all right-thinking derivatives trading folk is that the [[oral agreement]], between the traders is the binding legal agreement, and not the subsequent confirmation, hammered out between middle office and operations folk after the trade is done. Hasten to Section {{{{{1}}}|9(e)(ii)}} — the {{{{{1}}}|Confirmation}} is only ''evidence'' of the binding agreement. Could that be it? | |||
Latest revision as of 13:30, 14 August 2024
What you see is what you get, folks: if it ain’t written down in the ISDA Master Agreement, it don’t count, so no sneaky oral representations. But, anus matronae parvae malas leges faciunt, as we Latin freaks say: good luck in enforcing that if your counterparty is a little old lady.
Note also that liability for a fraudulent warranty or misrepresentation won’t be excluded. So if your oral representation or warranty is a bare-faced lie, the innocent party can maybe still rely on it in entering the agreement, even if it isn’t written down, though good luck parsing the universe of possible scenarios to figure out when that qualification might bite.
Smart-arse point: A warranty is a contractual assurance, made as part of a concluded contract, and cannot, logically, be relied on by the other party when entering into the contract. An assurance on which one relies when deciding to enter into a contract is a representation.
{{{{{1}}}|Confirmation}}s
“This Agreement”, courtesy of how it is defined in Section 1(c), includes the ISDA Master pre-printed form, Schedule and each Confirmation entered into under it.
The entire agreement clause is legal boilerplate to nix any unwanted application of the parol evidence rule — to make sure one only cares for the four corners of the written agreement, and no extra-documentational squirrelling is allowed. Which might be a problem because the time-honoured understanding between all right-thinking derivatives trading folk is that the oral agreement, between the traders is the binding legal agreement, and not the subsequent confirmation, hammered out between middle office and operations folk after the trade is done. Hasten to Section {{{{{1}}}|9(e)(ii)}} — the {{{{{1}}}|Confirmation}} is only evidence of the binding agreement. Could that be it?