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{{a|design|}} | {{a|design|}}Thoughts following call on 3 March 2021 | ||
Thoughts following call on 3 March 2021 | |||
===Levels of meaning/audience=== | ===Levels of meaning/audience=== | ||
There are at least three layers of meaning, which equate with audiences: (a) business: what practically is the deal I have to do; (b) litigation: | There are at least three layers of meaning, which equate with audiences: (a) business: what practically is the deal I have to do; (b) [[litigation]]: how to ''avoid'' it by being so clear no one would take the point; (c) ease of systematic risk monitoring of legal terms, recognising this will increasingly be by means of machine/code. | ||
*'''The term sheet'': these are the [[cocktail napkin]] terms; merchants assume the particular articulation of things that “go without saying” can be left to the legal layer. | |||
*'''The legal layer''': written in legal text (which may be more or less legalese) but which is designed to | These layers translate more or less to: | ||
*'''The code layer''': The legal terms (be they | *'''The term sheet''': these are the [[cocktail napkin]] terms; merchants assume the particular articulation of things that “go without saying” can be left to the legal layer. | ||
*'''The legal layer''': written in legal text (which may be more or less [[legalese]]) but which is designed to ensure that those things that ''ought to'' “go without saying” in fact ''do''. To address an assertion made on the call which, on reflection, I would resist: it is ''never'' the objective “to convince a judge”: it is to put matters so clearly that ''no-one would need to refer the document to a judge''. This is important, as “I am writing with litigation in mind” is, otherwise, a justification for writing in a legalistic way: ''I write this way because this is what a court would expect''. This is a fallacy: First, a contract that comes before a court ''has already failed''. A contract that is so clear that no-one in her right mind would litigate it will, if litigated, have the best likelihood of a positive outcome. Second, to write something in careful legalese for the benefit of a court sounds ''cute'': as if you are writing a coded message that you hope a judge will understand, but that your counterparty will not. That is bad faith. A [[piece of paper]] is a poor risk management tool, except as far as it discourages vexatious or wilful interpretations. | |||
*'''The code layer''': The legal terms (be they term sheet or [[boilerplate]] terms) rendered in some kind of propositional or elementary form that reveals their fundamental logical structure. | |||
===Other work in this space=== | ===Other work in this space=== | ||
*Note the encyclopaedia of forms and precedents whereby you could call standardised templates very quickly. | *Note the encyclopaedia of forms and precedents whereby you could call standardised templates very quickly. Could we borrow some of that? | ||
*Note the work Ken Adams has done to codify the constituent parts of legal contracts. | *Note the work Ken Adams has done to codify the constituent parts of legal contracts. | ||
===Behavioural/incentive issues=== | |||
User acceptance and “changing habits of a lifetime” are important behavioural points to overcome. However it strikes me that lawyers have forgotten the benefit of separating commercial terms from the legal layer: that is the basic architecture of the encyclopaedia of forms and precedents and for that matter, the ISDA master agreement: hardcode boilerplate; export key commercial terms and bespoke modifications. | |||
===Opensource vs IP=== | |||
This project should be a free, open source, public utility. The the model should be open architecture, open-source, freeware. GitHub or MediaWiki, not ISDA. No-one should extract [[rent]] from boilerplate. | |||
The information revolution has enabled our “drift to complicatedness” — with that a view has emerged that the resulting “legal technology” is somehow has intrinsic value, is proprietary and should be commercially protected. It is better to see good market-standard contractual terms as a common interface between market participants: a public utility that enables business to get done with minimal friction. No-one should try to own it or extract rent from it. Contract ''technology'' should not ''proprietary''; rather contracts — agreements ''made out of'' contract technology — may be ''confidential''. To confuse a contractual ''confidence'' with a proprietary right in [[intellectual property]] comprising the contract is to make a category error. | |||
===Ask=== | ===Ask=== | ||
I think ask at this stage is to identify the basic elemental building blocks of commercial contracts. It strikes me there are two ways of achieving this: firstly, to identify and parameterise a limited number of canonical contractual propositions: obligations, discretions, rights, definitions, conditions precedent, representations. The objective here is to see if there is a small, manageable number of basic propositions which most contractual provisions can conform | I think the ask at this stage is to identify the basic elemental building blocks of commercial contracts. It strikes me there are two ways of achieving this: firstly, to identify and parameterise a limited number of canonical contractual propositions: obligations, discretions, rights, definitions, conditions precedent, representations. The objective here is to see if there is a small, manageable number of basic propositions to which most contractual provisions can conform. | ||
{{ | |||
And the difference between a complex obligation and a simple one comes in the articulation of each of the objects in side it. So, compare | My hunch is that there is, and the apparently infinite complexity of legal drafting in fact subsists at a lower, syntactical level. For example, the “object” proposition is: | ||
{{quote| | |||
{{red|[[code obligation|obligation]] [}} | |||
:{{de|label}} {{{label}}} | |||
:{{de|who}} {{{who}}} | |||
:{{de|operator}} {{{operator}}} | |||
:{{de|action}} {{{action}}} | |||
:{{de|how}} {{{how}}} | |||
:{{de|when}} {{{when}}} | |||
:{{de|condition}} {{{condition}}}{{red|]}} }} | |||
And the difference between a complex obligation and a simple one comes in the articulation of each of the objects in side it. So, compare: | |||
{{tabletop}} | {{tabletop}} | ||
!style="width: | !style="width: 25%"|ISDA 2002 | ||
!style="width: | !style="width: 75%"|2002 Code | ||
{{aligntop}} | {{aligntop}} | ||
| | |||
{{ | :{{isdaprov|2(a)(i)}} Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other provisions of this {{isdaprov|Agreement}}.<br> | ||
{{ | |{{c-obligation|template=ISDA 2002 2(a)(i)1|format=pr}}{{edit|15551}} | ||
|{{ISDA | |||
{{aligntop}} | {{aligntop}} | ||
| | | | ||
:{{isdaprov|2(a)(ii)}} Payments under this {{isdaprov|Agreement}} will be made on the due date for value on that date in the place of | :{{isdaprov|2(a)(ii)}} Payments under this {{isdaprov|Agreement}} will be made on the due date for value on that date in the place of the account specified in the relevant {{isdaprov|Confirmation}} or otherwise pursuant to this {{isdaprov|Agreement}}, in freely transferable funds and in the manner customary for payments in the required currency. <br> | ||
|{{c-obligation|template=ISDA 2002 2(a)(ii)1|format=pr}} | |{{c-obligation|template=ISDA 2002 2(a)(ii)1|format=pr}} | ||
{{tablebottom}} | {{tablebottom}} | ||
I also suspect there are some standard form provisions that are worth rending as standard objects (rather than constructing them out of canonical forms) — basically “boilerplate” clauses which are semantically complex, but unitary in the context of a contract (for example, the [[Contracts (Rights of Third Parties) Act 1999|Third Party Rights]] clause). | |||
===Goal=== | |||
The theory is to start lawyers thinking about code in |