|Towards more picturesque speech™
Abraham Maslow proposed a “hierarchy of human needs” in his famous 1943 paper A Theory of Human Motivation.
Somewhere near the other top of the eagle’s list — nest? — is the need for utter, nose-bleeding clarity in legal expression. To be sure, wizened malcontents might advance the counter-hypothethesis that a little constructive doubt is no bad thing, but no-one really cares about them and, inevitably, the will to certainty prevails.
One might — alack; one fruitlessly does — retort that a skilled draftsperson should not create conflicting contracts in the first place. Quite so: but the architecture of legal documentation in the financial markets is such that conflicts are not just inevitable, but intended: the schedule to the ISDA Master Agreement is designed to override contrary provisions in the pre-printed boilerplate ,where the parties so agree. Of course, there it goes without saying that a purpose-built overriding schedule should, as intended, override.
But nowhere is it written in the legal practice manual that a proposition’s going without saying is necessary or sufficient grounds for it not being said. Why not say it, for the avoidance of doubt? What harm does it do?
One might — aye; fruitlessly does — reply that a skilled draft person should draft without doubt in the first place. But here we are.