To the fullest extent permissible by law
It won’t be long in the life of a young lawyer before she comes across this delightfully flannelled subordinate clause:
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The JC’s guide to writing nice.™
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The Issuer to the fullest extent permissible by law, accepts no liability for the contents of this prospectus...
She might pause briefly, on that first fumbling encounter, and wonder what legal mischief this incantation is calculated to ward off. Does the law assume that any contractual provision is deemed, unless you say to the contrary, to be half-hearted in its intent — a choked nine-iron back onto the fairway from behind a tree, and not a full-throated drive at the green?
God only knows, is this commentator’s remark. Actually, let’s face facts: God probably doesn’t know either.
But a bit of research suggests that this gem found its way into the forensic world some time in the late 1970s. And as you’ll see to the right[1], it has flourished since its introduction.
The lilly-liveredness of the statement makes us shudder.
We know for certain that no-one saw fit to make this remark before the 1970s. What is it about the modern world that makes a legal eagle worry so? Does it not, subliminally, sent a contrary message: “I am saying I accept no responsibility but, tacitly, I suppose I realise, at some level, I probably do. You know, that old devil “the law’s fullest extent” might hunt me down and get me.”
Whereas consider the simpler, bolder statement: “The Issuer accepts no liability for this prospectus. None at all. FULL STOP love and kisses xox”
This leaves those disposed to vexatious litigation in no doubt where they stand.
“Okay, okay, I get it. You aren’t responsible. Jesus. Calm down already.”
Now, should it transpire that the fullest extent of the law does not allow the Issuer off a hook to which the law’s gentler passages might have turned a blind eye — we quite like the idea there are lazy stretches further down the legal river that aren’t as wild as its farthest reaches, by the way — then investors will get the benefit of that full extent, however fulsome or terse the Issuer’s disclaimer.
So what does the Issuer gain by tempering its disclaimer with this “fullest extent” vacillation?
As do so many of the hypotheticals posed in these pages, we suppose this one too will turn out to be a rhetorical question.