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Conclusive evidence clause: Difference between revisions
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Of course, as we well know, most [[indemnities]] are ''not'' well-crafted, but will be hopelessly vague, woolly, all-you-can-possibly-think-of affairs — just the kind of thing that ''isn’t'' “readily ascertainable”, at least not without the need for the a full adversarial process, with a day’s cross examination from Sir Jerrold Baxter-Morley, Q.C., to thrash them out. | Of course, as we well know, most [[indemnities]] are ''not'' well-crafted, but will be hopelessly vague, woolly, all-you-can-possibly-think-of affairs — just the kind of thing that ''isn’t'' “readily ascertainable”, at least not without the need for the a full adversarial process, with a day’s cross examination from Sir Jerrold Baxter-Morley, Q.C., to thrash them out. | ||
What to do? Light-bulb moment! Have someone issue a [[certificate of indebtedness]]! Better still, have the counterparty agree, in advance, that it will be conclusive of the amount owed! Brazen though this strategy seems, it must have worked for a time, because we now find conclusive evidence clauses a part of standard [[boilerplate]] in any kinds of financing document — even, entertainingly, those without [[indemnities]] — to the point where few people know what the provision is even for, and even fewer challenge it. Well, dear reader, now you do. | |||
Thus, you will see that tell-tale [[caveat]]: “in the absence of [[manifest error]]”: where the sum claimed was obvious and not really in dispute; the bank did certify it but a fly got in the typewriter or some such thing and they sent out a certificate containing obviously the wrong number. Well, clearly that’s not conclusive, right? | Thus, you will see that tell-tale [[caveat]]: “in the absence of [[manifest error]]”: where the sum claimed was obvious and not really in dispute; the bank did certify it but a fly got in the typewriter or some such thing and they sent out a certificate containing obviously the wrong number. Well, clearly that’s not conclusive, right? | ||
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But, alas, we do not live in such sensible times. The banking world is populated by idiots. These days [[indemnities]] are thrown around willy-nilly in the capital markets business, to cover all kinds of stupidly indeterminate, inappropriate things. It will not shock an [[Mediocre lawyer|experienced counsel]] to see an {{tag|indemnity}} claimed for “any and all losses, costs, damages, liabilities, disbursements, expenses claims of whatever kind we may experience at any time merely as a function of drawing a breath”. | But, alas, we do not live in such sensible times. The banking world is populated by idiots. These days [[indemnities]] are thrown around willy-nilly in the capital markets business, to cover all kinds of stupidly indeterminate, inappropriate things. It will not shock an [[Mediocre lawyer|experienced counsel]] to see an {{tag|indemnity}} claimed for “any and all losses, costs, damages, liabilities, disbursements, expenses claims of whatever kind we may experience at any time merely as a function of drawing a breath”. | ||
This is outrageous, if only in its silliness, but well paid [[Mediocre lawyer|members of the legal profession]] will defend it to the hilt, which they will try to bury in | This is outrageous, if only in its silliness, but well paid [[Mediocre lawyer|members of the legal profession]] will defend it to the hilt, which they will try to bury in someone’s back, put there in the process of pinning a [[certificate of indebtedness]] between their shoulder blades. | ||
Eventually, even one with a love of principle over common sense such as I will feel cowed and will give in. Life is too short. | Eventually, even one with a love of principle over common sense such as I will feel cowed and will give in. Life is too short. | ||