For the avoidance of doubt

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The Jolly Contrarian’s Glossary

The snippy guide to financial services lingo.™

I think this is René Descartes. But ...

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And to this end they built themselves a stupendous super-computer which was so amazingly intelligent that even before its databanks had been connected up it had started from “I think, therefore I am” and got as far as deducing the existence of rice pudding and income tax before anyone managed to turn it off.

—Douglas Adams, The Hitch-Hiker’s Guide to the Galaxy

A solicitor — one licensed in the practice of semantic precision, after all — can scarcely indicate unconditional surrender to the demands of the English language more clearly than by using this abominable phrase. Even as a piece of English it is hideous: what kind of fiend converts “avoid” into a noun? what kind of glass-half-empty misanthrope sets as his guiding objective the negative one of not being confusing?

The JC likes to rush in, as you know, where fools fear to tread. So let us try to achieve what Descartes could not. If you cannot avoid it, at least put a name on it. So let us — for the avoidance of doubt — thoroughly define what we mean by “doubt”:

The meaning of doubt

For the avoidance of doubt, “avoidance of doubt” shall mean the removal of (or outright refusal to face up to) any doubt, imprecision, ambiguity, double-entendre, alternative way of looking at things or other cognitive dissonance of any type, kind or nature whatsoever including, without limitation (and for the avoidance of doubt):

(A) wilful, inadvertent or innocent misunderstanding on the part of any person, whether as the result of ambiguity, syntactic confusion, metaphor or innuendo;
(B) insecurity, unease, lack of confidence or similar want of conviction about one’s ability, prospects of success or place in the universe, whether or not arising only during moments of weakness, darkness, tiredness or inebriation (and whether or not such insecurity can be easily cured by sobriety, daybreak, a decent lie-in or a hearty walk in the woods);
(C) lack of certainty as to
(a) the existence or occurrence of any other person, place or thing when not personally (or, in the case of a tree falling in a forest, hypothetically) observed; or
(b) one’s own physical existence (it being acknowledged that one’s intellectual existence as a “thinking thing” (res cogitans) is beyond rational scepticism);
(D) causal scepticism, casual scepticism or casual causal scepticism including
(a) suspicion as to the necessary connexion, brought about by their apparent conjunction, between an outcome and its putative cause; and
(b) any tendency to smugly point out others’ confusion between correlation and causation;
(E) undecidability, incompleteness, uncertainty, irrationality, strange-loopiness, circularity, superposition, the requirement in one’s cosmology for unobserved dimensions or nested universes or any other paradoxes produced by theoretical physics or mathematics now or any time in the future (whether and howsoever “future” may be defined, and irrespective of the then-prevailing space-time geometry);
(F) hesitation, procrastination, reluctance, lack of resolve or outright denial of plain facts of life; or
(G) any other analogous neurological state that either party, acting in good faith and a commercially reasonable manner, determines to have materially compromised its ability to articulate itself a sensible and practical way.

Why not say, positively, “to be clear”? I’ll tell you why not: because that would be to concede that, until now, one has not been. “You had one job”, so the saying goes, and as an officer of Her Majesty’s courts, that job was to craft your prose in a way that didn’t contain doubt in the first place. For what is the point of a contract if not to clear up the confusion so readily left by the primordial grunts, nods and inarticulate mumblings of merchants as they interact with each other?

This is how it usually plays — this is, honest to God, a real-life example:

The Chargor assigns and agrees to assign absolutely, subject to the proviso for re-assignment on redemption, all of its rights in respect of the Assigned Receivables, together with the benefit of any security granted to the Chargor thereof (and together in all cases, for the avoidance of doubt, with the proceeds thereof).

Do you feel reinvigorated with clarity and certainty, readers?

Speaking of God, it is a little known fact that Descartes’ epic metaphysical tract Discourse on the Method was a spirited attempt to define the expression for the avoidance of doubt. Descartes started by asking, “what is doubt? Can we ever be sure that what we think is doubt, is, actually, doubt? And if there is some doubt about that, how should we feel about it? Doubtful?”

Poor old Descartes never figured that out, but found himself — at least as a thinking thing — and he found God, too — well, he thought he did — along the way, so his day wasn’t totally wasted.

Yet, what is doubt? What is this existential flummery, that fogs our interior on even the sunniest day? Whence that numbing smoke that more thickly fills our mortal cockpit, day by day?

Doubt avoidance as the job description

One might make the case that the entire role of a commercial solicitor can be boiled down to “avoiding destructive doubt” that undermines commercial relationships. That’s the day job. Now there may be some nugatory regulatory cross-checking required, to be sure, but as regulation is typically designed not to be flakey or ambiguous — an ambition it does sometimes fall short of, I grant you — the job of advising on it ought not be the one that keeps home fires burning.

Not all doubt is destructive. We must contrast destructive doubt with a kind of high-functioning doubt that is healthy in a commercial relationship — that keeps the the passion aflame; keeps hearts aflutter, keeps the parties surprising each other with flowers and romantic candle-lit dinners every now and then, and is not really the solicitor’s job to poke her nose into that.[1] Removing that kind we call not doubt “avoidance” but doubt “evasion”.[2] it goes beyond the prudent optimisation of one’s commercial affairs that every merchant is entitled to. Doubt evasion is a far more serious matter.

The case for doubt avoidance

Now as you know readers, the JC likes to argue the toss about every little thing, with every little person, any time day or night. Every so often the JC even finds himself getting in an argument with himself. This is one such occasion.

For however odious, however mealy-mouthed, however derogative of an attorney’s basic professional calling — “for the avoidance of doubtdoes have a use, and a deliciously subversive one at that.

FTAOD” is a dead man’s code: a message in a bottle; a trail of breadcrumbs; a final message to the hereafter from a doomed Tommy on the Front. It is the perishing hope that, perhaps years later, someone might come across it and his labour will not have been in vain. This is Private Eagle’s last, mud-stained letter to his sweetheart back home, saying “don’t worry, my love: everything will be all right,” the night before he was sent over the top.

How so? Well, cast your mind forward eleven years from the battlefield. The contractual skirmish in which Private Eagle’s parting shot was fired is but a memory, as is Private Eagle. The contract bearing it witness, once executed, was faxed, scanned, crushed, buried in peat, smudged, mislaid, sent by mistake to Colchester and eventually routed to its final resting place deep in an electronic document repository a server somewhere in Gdansk. This is where master contracts go once they have fulfilled their main purpose, which is injecting gravity and commitment to the onboarding ritual. They are sent there in the hope — usually justified, in fairness — they will never again be required. Except, ha ha, in case of catastrophe.

But a decade on, there is just such a catastrophe. The client is in trouble. The credit team are running around with their hair on fire. Suddenly, everyone up and down the chain of command to and including the chief risk officer is feverishly interested in that elderly contract. They want to know, in forensic detail, with utter certainty and now, what it means.

The file is retrieved from Poland, packaged up and sent to some poor legal eagle, who will never have seen it before, let alone been involved in its negotiation. She must do that analysis, faultlessly and at the double. She must categorically advise that the risk team has the necessary rights to plunge their detonator. She gets out the agreement template, sets it beside the executed document and does her best to compare this smudged, pixelated horror-show against what, according to the playbook, it was meant to say, and would have said, had it been a perfect world. But, eheu: it is not a perfect world. It is one inhabited by pettifogging buyside counsel and customers who like winning points on the docs for the sake of it. There are, accordingly, dozens of textual additions and excisions from the standard.

Now parsing a mutilated legal text on a good day is a fraught business: that is why lawyers get paid so much. But it is orders of magnitude worse in a crisis. Things that look straightforward in daylight rear up like hellish stallions in the black night of client distress. Words thrown carelessly into a draft take on a ghoulish aspect.

Of course, if those carelessly tossed-about words were simply a function of someone trying to show they they were paying attention or just making some input, it might be different. But, at a decade’s remove, that is a bold conclusion to draw. It is a curious fact of legal practice that the more harmless an addition is, the more terrifying it will seem on the eve of war. Its very frivolity will set alarms blaring precisely because it seems so pointless. Why on Earth would anyone go to the bother of adding “... under this agreement or any other agreement, where applicable, as the case may be,” if it didn’t mean something?

It is axiomatic that words deliberately inserted into a legal tract have work to do. If they are not obviously beneficent, she must assume them to be nefarious. She may not say, “it will be all right on the night”. What a legal eagle doesn’t know for certain she must deny. It is in her nature.

Now switch back to that poor, toiling Tommy and see the beautiful thing he has done. “For the avoidance of doubt” is his gift to the future: it dispels that kind of uncertainty before one can be gripped by it. It says, “to whom it may concern: you may safely ignore what follows. It goes without saying. It is only there because some clot on the other side wouldn’t let it go, and our salesperson was about to go into orbit if we did not sign the docs. I did not die in a ditch. We closed the deal.”

This is an honourable use of a dishonourable expression. While passing subtle judgment on your opponent’s pedantry, it steers your successors home, solving the perennial problem of delivering certainty in a draft and accommodating your customer’s pedantry at the same time. It is just a pity it is so tiresome a phrase. But other formulations might do as well: “to be clear” — if you are comfortable with an informal register — “for clarity” if not.

Thus “FTAOD”, for its outward silliness, becomes our little code: our in-joke: our word to the wise.

See also

References

  1. I have written at length about that elsewhere.
  2. I am indebted to Graeme Johnston for this, and many other, excellent ideas.