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:''In the event that Party A makes any material changes to its investment policies it [[shall]] be [[obligated]] to {{strike|immediately}}{{insert|as soon as reasonably practicable}} notify Party B. | :''In the event that Party A makes any material changes to its investment policies it [[shall]] be [[obligated]] to {{strike|immediately}}{{insert|as soon as reasonably practicable}} notify Party B. | ||
What | What does “immediately”, as used here, even mean? Do we expect poor benighted Party A to be in [[fundamental breach]] should it fail at the instant — measured upon an atomic clock — that the alteration to said investment policy is formally approved in the institution’s minutes? | ||
No? Then within what period | No? Then within what period can one dither and still be thought of as in the moment? | ||
You might think Party A needs ''some'' time to collect itself, canter back to the office, fish the Rolodex out of the drawer, find Party A’s number, clear its throat, wait for Party A to pick up the line and exchange some human pleasantries before imparting this vital news. If so, you might ask yourself just how different that sense of “[[immediately]]” is to “[[as soon as reasonably practicable]]”. Not very, is your correspondent’s opinion. | You might think Party A needs ''some'' time to collect itself, canter back to the office, fish the Rolodex out of the drawer, find Party A’s number, clear its throat, wait for Party A to pick up the line and exchange some human pleasantries before imparting this vital news. If so, you might ask yourself just how different that sense of “[[immediately]]” is to “[[as soon as reasonably practicable]]”. Not very, is your correspondent’s opinion. | ||
In any case, unless Party B is both gagging to close this poor fund, and possessed of some unnatural intelligence as to its precise internal workings, as a covenant it is literally unenforceable in any case. Here are the possible scenarios after Party A changes its investment policy: | |||
#'''Party A does not tell Party B of the change ''at all'' but Party B is oblivious to the change''': Party A has breached its covenant, but Party B cannot know this, so is in no position to take any action. Hard cheese, Party B! | |||
#'''Party A does not tell Party B of the change ''at all'' but Party B somehow gets wind of it''': Party A has breached its contract, Party B knows of it, but because Party B knows about it, it is in exactly the position it would have been in had Party A complied with the contract, and cannot therefore suffer any loss as a result. | |||
#'''Party A does not tell Party B of the change ''at first'' and hasn’t yet, but will do eventually, after an unreasonable delay''': Same as 1: To paraphrase the head chef at Fawlty Towers, [[What the eye don’t see the chef gets away with|eye is not seeing, so the chef is getting away with it]]. | |||
#'''Party A does not tell Party B of the change ''at first'' but then does tell Party B, only after an unreasonable delay''': By the time Party B finds out the contract has both been breached ''and remedied'', so it is hard to see what action lies. | |||
“Immediately” might ''look'' severe, but it has a handsome economy quite lacking from “[[as soon as reasonably practicable]]”. A [[prose stylist]] might feel forcing such an inelegance on an already ungainly contract to be an unnecessary step. But it is not a hill that many negotiators would die on. | “Immediately” might ''look'' severe, but it has a handsome economy quite lacking from “[[as soon as reasonably practicable]]”. A [[prose stylist]] might feel forcing such an inelegance on an already ungainly contract to be an unnecessary step. But it is not a hill that many negotiators would die on. | ||