Inconsistency

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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.