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Conclusive evidence clause: Difference between revisions
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In the traditional banking world — the one where [[lender]]s are prudent community pillars, obtain only the [[indemnities]] they need and that can be justified before a jury of their peers, and [[borrower]]s understand their place in the world — this is all straightforward: A banker ''ought'' to know how much {{sex|she}} is owed, and how much interest, and how it compounds, and ought not to be subjected to a tedious back-and-forth with a mendacious borrower trying prolong process of paying. That sort of carry-on only benefits one person, as we all know, O dear [[Mediocre lawyer|attorney]]. | In the traditional banking world — the one where [[lender]]s are prudent community pillars, obtain only the [[indemnities]] they need and that can be justified before a jury of their peers, and [[borrower]]s understand their place in the world — this is all straightforward: A banker ''ought'' to know how much {{sex|she}} is owed, and how much interest, and how it compounds, and ought not to be subjected to a tedious back-and-forth with a mendacious borrower trying prolong process of paying. That sort of carry-on only benefits one person, as we all know, O dear [[Mediocre lawyer|attorney]]. | ||
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? | ||
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 in any [[space-time continuum]], merely as a function of drawing a breath”. | ||
This is outrageous | This is outrageous, but well paid [[Mediocre lawyer|members of the legal profession]] will defend it to the hilt, which they will then try to bury in someone’s back, in the process pinning a [[certificate of indebtedness]] between the adjacent shoulder blades. | ||
Eventually, even those who revere correct principle over grubby pragmatism will feel cowed and will give in. Life is too short. | Eventually, even those who revere correct principle over grubby pragmatism will feel cowed and will give in. Life is too short. ''Have'' your stupid conclusive evidence clause. | ||
But, good luck enforcing | But, good luck enforcing it. And, really, good luck sticking in a clause saying “In the absence of [[manifest error]], a certificate from the Lender as to any “Loss” will be conclusive evidence of the amount owing” and getting a tribunal of fact to pay it the blindest bit of attention. | ||
{{sa}} | {{sa}} | ||
*[[Indemnity]] | *[[Indemnity]] | ||