Good egg
On why it behoves you to be a good egg.
Those who cherish the feel of flannel close to the skin will take comfort in expressions like “all or substantially all”; “in whole or in part”, “one or more”; “unless otherwise agreed” . These expressions betray a fear that a judicial officer reading one’s prose will take a perversely literal view of it: that a court will construe your words deliberately to upset you; as the Latins say, “contra proferentem”.
But the law of the land is not there to frustrate your reasonable commercial intentions. A court will only do that if your intentions were otherwise (as, to be sure, many a merchant’s will be if the opportunity arises to tilt the tables in his favour - Adam Smith had some choice things to say about that). If you exploit a counterparty’s vulnerability or patent misapprehension, expect to find the awesome creative weight of the common law – estoppel, constructive trust; money had and received, assumpsit – incanted against you.
But as long as you don’t – if you act in good faith and a commercially reasonable manner and your love your neighbour as he loves himself; doing unto others only what you would have done unto yourself – you need not fear a wantonly literal construction.
If that is your caper, don’t expect words on paper, however exquisitely turned, to help you.
There is a (home made, admittedly) Latin maxim – anus matronae parvae malas leges faciunt (“little old ladies make bad law”) which, even though I made it up, may be the final, deepest foundation of the law of equity. It has a converse expression, also home made and converted into Latin to make it sound plausible: non mentula esse: don’t be a dick. Be clear about what you want, and be a good egg, and you have little to fear from her majesties judiciary. Bonum ovum esse, you know?
It is true that common law formulated in the service of wronged spinsters presents later courts who are bound by it with hefty intellectual challenges, but no self respecting judge shies away from those – they’re what she took the oath for in the first place.
All