I never said you couldn’t

A deep self-doubt which begets inclusos and for the avoidance of doubts, is the lawyer’s reluctance to grasp a simple proposition: You don’t have say what you have not agreed to do in a contract. You don’t have to do anything you haven’t agreed to do.

Your starting point, therefore, should be that you should not say what you are not going to do. The trick comes with trying to peg back a vague, general commitment, by using specific restrictions (for the avoidance of doubt. Of course, the literary-minded might prefer to draft clearly and precisely in the first place.

Which brings us to Nasty. In The Young Ones, just before The Damned kicked off a boisterous rendition of their punk classic Nasty, Mike and Vyvyan agonised over their failure to get their new video recorder working. It is a parable for today’s uncertain times.

Mike: Maybe you shouldn’t have poured all of that washing-up liquid into it.

Vyvyan: It says here, “ensure machine is clean and free from dust”.

Mike: Yeah, but it don’t say “ensure machine is full of washing-up liquid”.

Vyvyan: Well, it doesn’t say “ensure machine isn’t full of washing-up liquid”.

Mike: Well, it wouldn’t would it? I mean, it doesn’t say “ensure you don’t chop up your video machine with an axe, put all the bits in a plastic bag and bung them down the lavatory.”

Vyvyan: Doesn’t it? Well maybe that’s where we’re going wrong.

This is the lawyer's take on that old philosophical adage: the onus of proof is on the person making an existential claim.

A general approach which might fortify you should you wish to strike inclusos from your documents: imagine trying to argue the counter-proposition before a court, without willing the ground open up and swallow you. Thus:

Mr. Amwell for the prosecution: “Your honour, it says “in writing”. But the defendant only sent me an email!”

Herbert J: “I see. And how did the defendant communicate in that email?”

A: “Well, she sent me an email.”

J: “So you say. And was the email in the form of an animated GIF or something?”

A: “No.”

J: “Was it in the form of a series of depictions of semaphore flags which, when taken together, conveyed the message without using words?”

A: “No, m’lud.”

J: “Well, then how was it articulated, Mr. Amwell?

Inaudible mumbling.

J: “Speak up, I can’t hear you.”

A: “It was in words, your honour.”

J: “Writing then, wouldn’t you say?”

A: “No, your honour. Words.”

J: “Words?”

A: “Yes. Words.”

J: “And are you suggesting that “words”, spelling out a message, albeit contained in a purely electronic medium, somehow do not amount to “writing”?”

A: “Permission to run for the hills, your honour.”

J: “Granted, Mr. Amwell. Flee!”

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