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What to do? Light-bulb moment! Have someone issue a [[certificate of indebtedness]]! Better still, have the counterparty agree, in advance, that it will be conclusive of the amount owed! Brazen though this strategy seems, it must have worked for a time, because we now find conclusive evidence clauses a part of standard [[boilerplate]] in any kinds of financing document — even, entertainingly, those without [[indemnities]] — to the point where few people know what the provision is even for, and even fewer challenge it. Well, dear reader, now you do, and you can! | What to do? Light-bulb moment! Have someone issue a [[certificate of indebtedness]]! Better still, have the counterparty agree, in advance, that it will be conclusive of the amount owed! Brazen though this strategy seems, it must have worked for a time, because we now find conclusive evidence clauses a part of standard [[boilerplate]] in any kinds of financing document — even, entertainingly, those without [[indemnities]] — to the point where few people know what the provision is even for, and even fewer challenge it. Well, dear reader, now you do, and you can! | ||
In the traditional banking world — the one where [[lender]]s are prudent community pillars, obtain only the [[indemnities]] they need and that can be justified before a jury of their peers, and [[borrower]]s understand their place in the world — this is all straightforward: A banker ''ought'' to know how much {{sex|she}} is owed, and how much interest, and how it compounds, and ought not to be subjected to a tedious back-and-forth with a mendacious borrower trying prolong process of paying. That sort of carry-on only benefits one person, as we all know, O dear [[Mediocre lawyer|attorney]]. | |||
Thus, you will see that tell-tale [[caveat]]: “in the absence of [[manifest error]]”: where the sum claimed was obvious and not really in dispute; the bank did certify it but a fly got in the typewriter or some such thing and they sent out a certificate containing obviously the wrong number. Well, clearly that’s not conclusive, right? | Thus, you will see that tell-tale [[caveat]]: “in the absence of [[manifest error]]”: where the sum claimed was obvious and not really in dispute; the bank did certify it but a fly got in the typewriter or some such thing and they sent out a certificate containing obviously the wrong number. Well, clearly that’s not conclusive, right? | ||
But, alas, we do not live in such sensible times. The banking world is populated by idiots. These days [[indemnities]] are thrown around willy-nilly in the capital markets business, to cover all kinds of stupidly indeterminate, inappropriate things. It will not shock an [[Mediocre lawyer|experienced counsel]] to see an {{tag|indemnity}} claimed for “any and all losses, costs, damages, liabilities, disbursements, expenses claims of whatever kind we may experience at any time merely as a function of drawing a breath”. | But, alas, we do not live in such sensible times. The banking world is populated by idiots. These days [[indemnities]] are thrown around willy-nilly in the capital markets business, to cover all kinds of stupidly indeterminate, inappropriate things. It will not shock an [[Mediocre lawyer|experienced counsel]] to see an {{tag|indemnity}} claimed for “any and all losses, costs, damages, liabilities, disbursements, expenses claims of whatever kind we may experience at any time merely as a function of drawing a breath”. | ||
This is outrageous, if only in its silliness, but well paid [[Mediocre lawyer|members of the legal profession]] will defend it to the hilt, which they will try to bury in someone’s back, | This is outrageous, if only in its silliness, but well paid [[Mediocre lawyer|members of the legal profession]] will defend it to the hilt, which they will try to bury in someone’s back, in the process of pinning a [[certificate of indebtedness]] between their shoulder blades. | ||
Eventually, even those who revere correct principle over grubby pragmatism will feel cowed and will give in. Life is too short. | |||
But, good luck enforcing that kind of {{tag|indemnity}}. And, really, good luck sticking in a clause saying “In the absence of [[manifest error]], a certificate from the Lender as to any “Loss” will be conclusive evidence of the amount owing” and getting a court to pay it any attention. | |||
{{seealso}} | {{seealso}} |