Commercial imperative
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The commercial imperative is the cold, hard bedrock of commercial reality which underpins every contract, every transaction, every thing about your relationship with your client, and which your client’s lawyer is certain to not understand.
If she does understand it, she will profess not to care about it, will claim it is beside the point, and insist on three acres of pointless legal mulch avoiding all of the paranoid doubts that she can coax out of the darkened deeper recesses of her cranium. This is entertaining — for her — but a ghastly waste of time for the better interests of commerce in the abstract, personified by you.
The commercial imperative is not beside the point. It is the point. It is, in the long run — when we personifiers of the better interests of commerce have been shunted from our mortal coil — the only point.
Why merchants transact
Every merchant enters into a contract with a commercial aspiration; that all going well, that contract will yield some kind of benefit. That is it; that is the sine qua non of entering into any commercial contract: you hope that, over time, it will help you will make money. Lots of money. If you do not, it is a dud contract. You should dispense with it.[1]
Assuming you have not nixed it, we can assume your contract is yielding you a great benefit. Let’s call that benefit “X”.
X breaks down into three discrete components:
- Historical X: “Historical X” is the benefit you have already extracted from this contract. Historical X will give you a comfy feeling, it brings to remind the chalet in France that you bought with it, and it may help project your expected benefit for the future, but for all other purposes Historical X is meaningless. It is in the past.
- Current X: “Current X” is the as-yet-unrealised benefit you expect from transactions that already exist or will arise during the non-fault notice period[2] of the contract . Think about this as “unbilled work in progress”. This is a benefit you can safely say you will earn, but have not yet. It is exciting — almost tangible — but, compared with Historical X and Future X, it will amount to bugger-all.
- Future X: “Future X” is the benefit you can expect throughout the remainder of your relationship, assuming you both remain solvent and on good terms.[3] Future X is much less certain, but it is potentially huge. This is the golden prize. This is what you should be focused on in every moment when you perform the contract.
You are short an option on Future X
Now. Look at the prospects for each type of X. Historical X is in the bank. Current X is as good as being in the bank. But you are short an option on Future X.
Why are you short an option? Because you are not entitled to Future X. You have to persuade your client to give it to you. You cannot stop it terminating your contract if it so wishes. It could give all that lovely, juicy Future X to someone else. You should apply every fibre of your being to giving your client no earthly reason to take its business elsewhere. In a very real sense, your future prospects depend on the continued performance of your valuable contracts.[4]
Dick moves
Now, during your relationship, you may, if the fancy takes you, indulge in what we might call “dick moves”.[5] You might seek to exploit the literal wording of a contract even though you both know your commercial intention in entering it was something else.
There are (at least) two kinds of dick moves:
- Mistrades: Dick moves that arise from a misconception between the parties: your expectation and your client’s about the commercial intention were different. Cheapest to deliver options in credit derivatives are this kind of dick move. Your client sees a Triple A rating eligibility criteria, and sees in it impeachable credit. You look at it and see an opportunity to dump the crappiest, most poorly risked, implausibly rated AAA bond that you can find.[6]
- “Tent-peg” mistrades: A broker servicing its client is somewhat short an option — the one that arises because the client is always right — and as a consequence will write in ostensibly outrageous legal protections, which it never intends to use, by way of defensive strategy to spike the client’s temptation to take advantage of its supiune broker.
Legal risk
At the start of your relationship, the value of the three types of X will be unknown. It is at this point that you, your counterparty, and your respective battalions of lawyers will engage in that unedifying ritual known as contract negotiation. Counsel will agonise four weeks on the potential import of the legal terms. “Does under really mean the same thing as pursuant to and in accordance with?” This kind of thing. Most of the arguments will concern circumstances which are almost certain never to occur and, if they do, Will necessarily be utterly destructive of Future X in any case. The insolvency of the parties, for example. It is all very tedious, but those of a certain disposition seem to enjoy it. We write about them a lot on this site.
In any case arguing about these semantics will delay the start of the Historical X period.
References
- ↑ By terminating it on notice, rather than by exploiting legal drafting, needless to say.
- ↑ Being the earliest point at which your counterparty could freely terminate its obligations under the contract.
- ↑ As Criswell famously said, “we are all interested in the future, for that is where you and I are going to spend the rest of our lives.”
- ↑ Just what to do about stale contracts, and where the parties have fallen out of affection for each other, is a subject for another article, but in a nutshell, shut them down. They are the tail end of the 80 in your 80:20 rule.
- ↑ In fairness, your client might, too. Especially if it is a hedge fund. Hedge funds are full of people who make dick moves, kind of as their business model.
- ↑ Once upon a time there were plenty. They all wound up in CDO3 deals.