Greenclose v National Westminster Bank plc: Difference between revisions

Greenclose v National Westminster Bank plc (view source)

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 {{Box|'''Learning Number 1''': Don't set an option expiry period that obliges you to serve notice in the Grundle.}}
-Error no. 2 - less of a schoolboy one, in this reviewer's opinion, was to assume that an email - being, after all, an '''electronic''' mail '''message''' sent over a computer '''system''' (so sayeth [https://en.wikipedia.org/wiki/Email Wikipedia]) fell within the meaning of an "electronic messaging system". Not so, thought Andrews J. because
+Error no. 2 - less of a schoolboy one, in this reviewer's opinion, was to assume that an [[email]] - being, after all, an '''electronic''' mail '''message''' sent over a computer '''system''' (so sayeth [https://en.wikipedia.org/wiki/Email Wikipedia]) fell within the meaning of an "[[electronic messaging system]]". Not so, thought Andrews J. because
-{{box|"In 1992, email was not in common use and thus the reference to “electronic messaging system” is unlikely to have been intended to include it."}}
+{{box|"In 1992, email was not in common use and thus the reference to “[[electronic messaging system]]” is unlikely to have been intended to include it."}}
 The court does not seem to have heard any evidence on this point. A cursory glance at Wikipedia would suggest this is wildly wrong: the SMTP protocol - over which email is still transferred today - was published in 1982. It is true that the '''expression''' "email" didn't enter the lexicon until 1993 - ''but that is consistent with nascent email being treated as a kind of [[electronic messaging system]]''.
-Andrews J compared with the equivalent provision in the {{2002ma}}. This DOES include email, as a separate item from "[[electronic messaging system]]":
+Andrews J compared with the equivalent provision in the {{2002ma}}. This '''does'' include [[email]], as a separate item from "[[electronic messaging system]]":
 {{box|{{ISDA Master Agreement 2002 12}}}}
+The intellectual endeavour here is interesting: Firstly, to deduce the meaning of the words in that agreement Andrews J looks at ''the intention of the person who crafted the {{1992ma}}'', and not the intentions of the parties who actually negotiated the agreement. The agreement was signed in 2006 - by which stage email was widely known and understood, and it seems fanciful to suggest parties would intend to include all [[electronic messaging systems]] ''but'' [[email]]. There is a long disquisition on what ISDA intended, which this reviewer submits is utterly irrelevant because ISDA was not a party to the contract.
+Andrews J needs also to draw a peculiar, narrow meaning of the word "system" to rule that while email may be a means of communicating electronic messages, it is not conducted via a "system". [[SWIFT]] is a system. [[SMTP]] over the [[Internet]] is apparently not.
+What's oddest about this is that the court needed to make ''none'' of these assertions to find that the purported means of service wasn't valid, because ''Greenclose hadn't specified an email address in the ISDA Schedule''.  Simply put, if I don't agree an email address to which you can send me messages, you can't send me a notice that complies with Section {{isdaprov|12}}, however you construe it. Greenclose didn't specify an email address. Case closed.