All our other counterparties have agreed this: Difference between revisions
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Among the lies habitually told in polite society today, few are more barefaced than “all our other counterparties have agreed this”. It ranks in outrage beside “[[your call is important to us]]”, “no, your bum doesn’t look big in that”, “we are taking back control” and “I can make America great again”. | |||
It is offered in support of a [[contract]]ual term which makes no commercial sense, is unlikely to achieve its intended purpose and might, in extreme cases, ruin your firm altogether. | |||
When you make this point your [[salesperson]], a wantonly gullible individual prone to believing anything his client says or does, will begin hyperventilating at the thought of “legal” resisting this “[[verbiage]]” and torpedoing the aspirations of his “[[platinum client]]”. For his part, the [[client]] will feign complete mystification: “But,” he will shrug, “all our other counterparties have agreed this.” | |||
Let all your klaxons blare. | |||
It is a preposterous lie, of course, and must be quickly picked apart. In doing so you will win no thanks from your [[salesperson]], who will volubly hate you for your trouble: yet, one of the great pleasures of advocacy is frustrating the carnal designs of the ungrateful for their own good. For if you had a better reason for insisting on a commercial term - and any reason would be better than that - why would you not mention it? | |||
You can rely on the [[in-house lawyer]]’s stock answer – “last I heard, we hadn’t outsourced our internal control function to our competitors” – and that should be the end of it. Or you could call your client’s bluff. Ask which of your peers has agreed such suicidal terms. Ask for copies of the [[contract]]s in which they did so. | |||
This will outrage your client (and, on his behalf, your salesperson) but he really has only himself to blame: he brought it up. He can hardly appeal to the confidentiality of contracts which, in his previous breath, he was happy to tell you all about. | |||
Now another broker may have agreed these terms. Perhaps it really was as supine or foolish as your client is asking you to be: it is always nice to know your competitors’ weaknesses. But that doesn’t mean you should follow suit. Most likely, the concession was subject to a giant [[quid pro quo]] your counterparty has “forgotten” to mention. And the broker may have only appeared to concede the point, skilfully burying a countermeasure in a schedule, side letter or in a crafty [[double negative]] in the definitions section. | |||
There are many commercial and legal reasons to agree to unpalatable terms. That “all your competitors have agreed it” is not one of them. | |||
There are many commercial and legal reasons to agree to terms |