Inconsistency: Difference between revisions
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{{a|plainenglish}} | {{a|plainenglish|}} Abraham Maslow proposed a hierarchy of human needs in his famous 1943 paper ''A Theory of Human Motivation''. [[Legal eagle]]s have their own hierarchy of needs, as indeed do the legal confections they create. This wiki is devoted to them: you might subtitle it “a theory of legal eagle motivation”. Someone in the other top is the need for utter, nose-bleeding clarity in legal expression — one might advance the counterhypothethsis that a little constructive doubt is no bad thing — and this finds its apotheosis in the “[[inconsistency]]” clause which addresses what should happen where two related contracts conflict with each other. | ||
One might — alack; one fruitlessly ''does'' — retort that a skilled draftsperson should not create conflicting contracts in the first place. Quite so: but the architecture of legal documentation in the financial markets is such that conflicts are not just inevitable, but intended: the schedule to the {{isdama}} is ''designed'' to override contrary provisions in the pre-printed boilerplate ,where the parties so agree. Of course, there it goes without saying that a purpose-built overriding schedule should, as intended, override. | |||
But nowhere is it written in the legal practice manual that a proposition’s ''going without saying'' is necessary or sufficient grounds for it ''not being said''. Why not say it, [[for the avoidance of doubt]]? What harm does it do? | |||
One might — aye; fruitlessly ''does'' — reply that a skilled draft person should draft without doubt in the first place. But here we are. | |||
Revision as of 14:54, 5 March 2021
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Abraham Maslow proposed a hierarchy of human needs in his famous 1943 paper A Theory of Human Motivation. Legal eagles have their own hierarchy of needs, as indeed do the legal confections they create. This wiki is devoted to them: you might subtitle it “a theory of legal eagle motivation”. Someone in the other top is the need for utter, nose-bleeding clarity in legal expression — one might advance the counterhypothethsis that a little constructive doubt is no bad thing — and this finds its apotheosis in the “inconsistency” clause which addresses what should happen where two related contracts conflict with each other.
One might — alack; one fruitlessly does — retort that a skilled draftsperson should not create conflicting contracts in the first place. Quite so: but the architecture of legal documentation in the financial markets is such that conflicts are not just inevitable, but intended: the schedule to the ISDA Master Agreement is designed to override contrary provisions in the pre-printed boilerplate ,where the parties so agree. Of course, there it goes without saying that a purpose-built overriding schedule should, as intended, override.
But nowhere is it written in the legal practice manual that a proposition’s going without saying is necessary or sufficient grounds for it not being said. Why not say it, for the avoidance of doubt? What harm does it do?
One might — aye; fruitlessly does — reply that a skilled draft person should draft without doubt in the first place. But here we are.