Terry’s law: Difference between revisions
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{{a|maxim| | {{a|maxim| | ||
[[File:Terry.jpg|450px|thumb|center|A chef getting away with what the eye don’t see, yesterday.]] | [[File:Terry.jpg|450px|thumb|center|A chef getting away with what the eye don’t see, yesterday.]] | ||
}}A vital part of pragmatic jurisprudence, neatly captured by the {{tag|Latin}} {{t|maxim}} | }}A vital part of pragmatic jurisprudence, neatly captured by the {{tag|Latin}} {{t|maxim}}, that I made up: ''[[quod oculo non videt coquus non est culpandum]]'' | ||
===Representations you can never know are false until it is too late=== | |||
:''[[quod oculo non videt coquus non est culpandum]]'' | |||
[[Covenant]]s, [[representations]] or [[warranties]] in two flavours: | [[Covenant]]s, [[representations]] or [[warranties]] in two flavours: | ||
*Those by which you expect counterparties to promptly advise you of their breach of contract to you | *Those by which you expect counterparties to promptly advise you of their breach of contract to you | ||
*Those the breach of which you cannot realistically expect to ever find out about, unless the counterparty owns up to them. | *Those the breach of which you cannot realistically expect to ever find out about, unless the counterparty owns up to them. | ||
To take another example which hails from the world of contract [[negotiation]] and is as good a practical justification for plain English as anything. Generalities hide a multitude of ostensibly odious particularities. Let us say your opposing legal eagle has, in his repertoire, an automatic, reflexive aversion to the idea that ones affiliates may somehow be involved in your provision of contractual services, notwithstanding the obvious truth that, in a world of international finance across borders whose perimeters are petulantly defended by parochial authorities requiring local fealty, the involvement of your local affiliates follows and certainly as night does day. Be that as it may this fellow object to it, and will rail against it with all his might if given the opportunity.<ref>Curiously, people like this seem more bothered that you may share their information with your own affiliates than with your independent professional advisers. This is just one of the hundreds of cognitive dissonances that provide endless amusement for those engaged in the provision of legal advice to the financial services industry.</ref> | ===Needlessly stating the bleeding obvious to your own cost=== | ||
To take another example which hails from the world of contract [[negotiation]] and is as good a practical justification for plain English as anything. Generalities hide a multitude of ostensibly odious particularities. Let us say your opposing legal eagle has, in his repertoire, an automatic, reflexive aversion to the idea that ones affiliates may somehow be involved in your provision of contractual services, notwithstanding the obvious truth that, in a world of international finance across borders whose perimeters are petulantly defended by parochial authorities requiring local fealty, the involvement of your local affiliates follows and certainly as night does day. Be that as it may this fellow object to it, and will rail against it with all his might if given the opportunity.<ref>Curiously, people like this seem more bothered that you may share their information with your own affiliates than with your independent professional advisers. This is just one of the hundreds of cognitive dissonances that provide endless amusement for those engaged in the provision of legal advice to the financial services industry.</ref> | |||
Some might ask, why must one’s correspondents be so bloody-minded? I mean really, who cares about [[affiliates]]? Well, apparently, ''you do''. If you did not, you would not go to such peripatetic lengths to mention them. I mean, just ''look'' at your text: it is guilty; defensive; cowed; its meticulous articulation of your affiliates’ involvement has the air of a confession. Any opposing lawyer will naturally fear that kind of particularisation. | |||
{{legal drafting capsule}} | |||
''So don’t give him the opportunity''. You have a choice whether to buy yourself this argument. If you say, for example, “the Service Provider [[shall be entitled to]] pass information to those of its [[employee]]s, [[agent]]s or [[affiliate]]s, and [[for the avoidance of doubt]] any [[employee]]s or [[agent]]s of any such [[affiliate]], to the extent such [[employee]], [[agent]] or [[affiliate]], or [[employee]] or [[agent]] of such [[affiliate]], requires it in order to provide the Services hereunder” you may rest assured that your learned friend will take up the cudgels you have so kindly offered him. Prudence would recommend you cancel any plans you may have made for dinner with your spouse any time in the next fortnight, while the two of you nut this out. | ''So don’t give him the opportunity''. You have a choice whether to buy yourself this argument. If you say, for example, “the Service Provider [[shall be entitled to]] pass information to those of its [[employee]]s, [[agent]]s or [[affiliate]]s, and [[for the avoidance of doubt]] any [[employee]]s or [[agent]]s of any such [[affiliate]], to the extent such [[employee]], [[agent]] or [[affiliate]], or [[employee]] or [[agent]] of such [[affiliate]], requires it in order to provide the Services hereunder” you may rest assured that your learned friend will take up the cudgels you have so kindly offered him. Prudence would recommend you cancel any plans you may have made for dinner with your spouse any time in the next fortnight, while the two of you nut this out. | ||
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*[[Representations and warranties]] | *[[Representations and warranties]] | ||
*[[Goal]] | *[[Goal]] | ||
{{ | {{ref}}{{c|Psychology}} | ||
Revision as of 17:35, 1 February 2021
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A vital part of pragmatic jurisprudence, neatly captured by the Latin maxim, that I made up: quod oculo non videt coquus non est culpandum
Representations you can never know are false until it is too late
Covenants, representations or warranties in two flavours:
- Those by which you expect counterparties to promptly advise you of their breach of contract to you
- Those the breach of which you cannot realistically expect to ever find out about, unless the counterparty owns up to them.
Needlessly stating the bleeding obvious to your own cost
To take another example which hails from the world of contract negotiation and is as good a practical justification for plain English as anything. Generalities hide a multitude of ostensibly odious particularities. Let us say your opposing legal eagle has, in his repertoire, an automatic, reflexive aversion to the idea that ones affiliates may somehow be involved in your provision of contractual services, notwithstanding the obvious truth that, in a world of international finance across borders whose perimeters are petulantly defended by parochial authorities requiring local fealty, the involvement of your local affiliates follows and certainly as night does day. Be that as it may this fellow object to it, and will rail against it with all his might if given the opportunity.[1]
Some might ask, why must one’s correspondents be so bloody-minded? I mean really, who cares about affiliates? Well, apparently, you do. If you did not, you would not go to such peripatetic lengths to mention them. I mean, just look at your text: it is guilty; defensive; cowed; its meticulous articulation of your affiliates’ involvement has the air of a confession. Any opposing lawyer will naturally fear that kind of particularisation.
Remember the starting assumption of all legal drafting: there is no frippery. Legal language is utilitarian. Spartan. Terse. It does not engage with trifles. What need not be said is not said. There are no incidentals, no figures — no metaphors in a legal tract. One leaves no scope for misinterpretation. Thus, every legal eagle addresses legal language presented to her the same way. If it is there, it must mean something. It must need to be said. What am I missing? This is the fear. She guards against this fear by deploying defensive language in return. The irony of this devotional commitment to abstemious precision is that when two or more practitioners are pitted against one another in its service, it leads so inexorably to such flabby, redundant, baroquity.
So don’t give him the opportunity. You have a choice whether to buy yourself this argument. If you say, for example, “the Service Provider shall be entitled to pass information to those of its employees, agents or affiliates, and for the avoidance of doubt any employees or agents of any such affiliate, to the extent such employee, agent or affiliate, or employee or agent of such affiliate, requires it in order to provide the Services hereunder” you may rest assured that your learned friend will take up the cudgels you have so kindly offered him. Prudence would recommend you cancel any plans you may have made for dinner with your spouse any time in the next fortnight, while the two of you nut this out.
If on the other hand, if you say “we may share your details within our organisation on a “need-to-know” basis only to progress the Project” there is a level chance that it won’t even occur to your correspondent that your “organisation” might have affiliates, much less that you meant to include them. What the eye don’t see the chef gets away with.
There is a dark inversion of this in the performance appraisal: What the Man don’t see, you don’t get no credit for. Hence, SMART goals, that bane of modern existence.
See also
- Immediately, versus as soon as reasonably practicable
- Quod non potes videre, non mihi reprehendo
- Representations and warranties
- Goal
References
- ↑ Curiously, people like this seem more bothered that you may share their information with your own affiliates than with your independent professional advisers. This is just one of the hundreds of cognitive dissonances that provide endless amusement for those engaged in the provision of legal advice to the financial services industry.