I never said you couldn’t

A kind of profound ontological uncertainty which leads to proliferating inclusos and for the avoidance of doubts, is the lawyer's reluctance to grasp a simple proposition: You don’t have positively document what you are not obliged do in a legal contract. In the absence of a contract you are not obliged to do anything.

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 wanting the ground open up and swallow you.

“Your honour, it says “in writing”. But the defendant only sent me an email!”
“I see. And how did the defendant communicate the message?”
“well, it was in the email.”
“And was the email in the form of an animated GIF or something?”
“No.”
“Was it a depiction of a series of pictures of semaphore flags spelling out a message?”
“No, m’lud.”
“How was it articulated, Mr. Amwell? Speak up, I can’t hear you.”
“It was in words, your honour.”
“Words?”
“Yes. Words.”
“And are you suggesting that words spelling out a message, contained in a purely electronic medium, these are somehow not writing?”
“Permission to run for the hills, your honour.”
“Granted, Mr. Buxton. Flee!”

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