Absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that transaction

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This lumpen phrase has found its way into the derivatives canon. Google “absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that transaction”, in quotes [1], if you don't believe me. There are 2000 hits for this exact phrase.

By contrast, “Last night, I shot an elephant in my pyjamas. How he got in my pyjamas, I'll never know.”[2] garners only 4,000 hits.

HOW CAN THIS PHRASE BE HALF AS POPULAR AS ONE OF GROUCHO MARX'S GREATEST LINES?

A moment’s reflection can break down this turgid twaddle:

“Absent” => “unless
“a written agreement between the parties” => “we agree
“that expressly imposes affirmative obligations to the contrary” => “otherwise
“for that transaction” => “ ”

This is, in other words, a long-winded way of saying “unless agreed otherwise”.

Now, a contract is simply a legally binding agreement. Nothing but a legally binding agreement. As long as one party is happy with the arrangement, the other is stuck with it.

But it is axiomatic that if neither is happy with the arrangement, they can agree to change it. They may change their minds. If they agree to do something different, that is that. If they “agree otherwise”, then otherwise it must be. One need not say this.

If it is meaningless to say “unless agreed otherwise”, then how fantastical must it be to say, “absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that transaction”?

References

  1. Let me Google that for you: you’ll need to supply your own quotation marks.
  2. Let me Google that for you: you’ll need to supply your own quotation marks.