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Now it is well-established in the literature that text in all caps is ''harder'' to read than ordinary text, so you might form your own opinion as to what possesses securities lawyers to render acres of their prospectuses in a less legible way — so less legible that even their own proof-readers have trouble catching every nuance, as the example from US Nuclear Corp’s [[offering memorandum]], in the panel, illustrates. | Now it is well-established in the literature that text in all caps is ''harder'' to read than ordinary text, so you might form your own opinion as to what possesses securities lawyers to render acres of their prospectuses in a less legible way — so less legible that even their own proof-readers have trouble catching every nuance, as the example from US Nuclear Corp’s [[offering memorandum]], in the panel, illustrates. | ||
On the other hand — and this is drawn from the [[JC]]’s theory of [[purpose]] in [[legal eagle]]ry, by the way — the point at which it matters whether a term is conspicuous is ''before one makes the decision to execute'', and the person by whom its reasonable conspicuity is to be judged is the person who realistically will be reading it. Afterwards, it is too late: whatever the term, as soon as it is germane, you may be assured its beneficiary will, gleefully, bring it to your attention. When you need it to be conspicuous is at the point where you are agreeing to it. If you have delegated the task of reading the contract to an agent, then what matters is not whether you would notice the clause, but whether your agent would. | |||
So, if the passage in question appears only on page 406 of an [[information memorandum]] relating to [[Wickliffe Hampton]]’s TRL300,000,000,000,000 26⅔% Subordinated Convertible Credit-Linked Bonds Due 4035 then, we humbly submit, there is ''no'' typographical contrivance in existence — or even possible in the realms of plausible science fiction, for that matter — that could be “so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it” since ''there is not a reasonable person alive who reads past the first five pages of an information memorandum anyway''. | |||
On the other hand, should the passage be buried in the sort of document that, by market convention, legal eagles from all sides will examine and critique — and draft bilateral contracts in the financial services world are ''exactly'' such documents, — then there is no chance that a reasonable person<ref>The reasonable reader here is not the counterparty to the contract, but the legal counsel it has engaged to {{strike|gorge themselves on the contract’s verbosity|review the contract}} — [[legal eagles]] are ''[[implicitly]]'' “reasonable” readers — would miss it. A lawyer who doesn’t notice part of a draft, however small the font in which it is rendered, is, [[Q.E.D.]], ''[[negligent]]'', which is, [[Q.E.D.]], ''un''reasonable. | |||
{{sa}} | {{sa}} | ||
*''[[In Re Bassett - Case Note|In Re Bassett]]'' | *''[[In Re Bassett - Case Note|In Re Bassett]]'' | ||
*[[Purpose]] | |||
{{ref}} | |||