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Netting opinion: Difference between revisions
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[[Netting opinion]]s tend to be long, academic, laden with hypotheticals, appealing to [[Latin]]ate principles of civil law and demanding of unusually skilled powers of comprehension and patience — they are required by regulation to be, in fact — but when it comes down to it, they all say the same thing: that close-out {{tag|netting}} is, ultimately, enforceable: because a [[netting opinion]] would have no reason to exist if it said anything else. | [[Netting opinion]]s tend to be long, academic, laden with hypotheticals, appealing to [[Latin]]ate principles of civil law and demanding of unusually skilled powers of comprehension and patience — they are required by regulation to be, in fact — but when it comes down to it, they all say the same thing: that close-out {{tag|netting}} is, ultimately, enforceable: because a [[netting opinion]] would have no reason to exist if it said anything else. | ||
And so, the netting opinion will say what you know to be true, at gruesome length, clothed in ambiguity and decorated with its own | And so, the netting opinion will say what you know to be true, at gruesome length, clothed in ambiguity and decorated with its own peculiar vocabulary. The following confection, uttered in any other context, would invite a bunch of fives, but it will go unchallenged in a netting opinion: | ||
:“According to legal literature, [[forward contract|forward contracts]] (''marchés a terme'') are [[synallagmatic]] (that is, the parties enter into mutual commitments, each binding itself to the other) and onerous contracts (that is, one party gives or promises something as a [[consideration]] for the commitment of the other party) and contain an [[aleatory]] element (''contrat aléatoire'').”<ref>What this seems to be saying is these | :“According to legal literature, [[forward contract|forward contracts]] (''marchés a terme'') are [[synallagmatic]] (that is, the parties enter into mutual commitments, each binding itself to the other) and onerous contracts (that is, one party gives or promises something as a [[consideration]] for the commitment of the other party) and contain an [[aleatory]] element (''contrat aléatoire'').”<ref>What this seems to be saying is these contracts involve binding [[mutual obligations]] — in other words, they’re {{t|contract}}s — and [[consideration]] — in other words, they are [[contract|contracts]]”, and those mutual obligations are referable to unpredictable (“[[aleatory]]”) events beyond the control of the parties: that is, they are “''[[derivative]] [[contract]]s''”.</ref> | ||
Continental lawyers will immediately recognise this terminology. They will tell you it stems from the [[Civil law|Roman tradition]], or some codex developed by a monk while Hannibal’s elephants trekked through the Dolomites, or something like that. Now we all have our legal folklore, and this is theirs: they learned it during their decades-long internment at the ''Faculté de droit de Paris''. It is their [[Donoghue v Stevenson - Case Note|snail in a gingerbeer]]; their [[Fardell v Potts - Case Note|negligent navigation of a flooded roadway by punt]]; their liability for a [[Ferae naturae|naturally ferocious domestic beast]] which escapes down your mineshaft. | Continental lawyers will immediately recognise this terminology. They will tell you it stems from the [[Civil law|Roman tradition]], or some codex developed by a monk while Hannibal’s elephants trekked through the Dolomites, or something like that. Now we all have our legal folklore, and this is theirs: they learned it during their decades-long internment at the ''Faculté de droit de Paris''. It is their [[Donoghue v Stevenson - Case Note|snail in a gingerbeer]]; their [[Fardell v Potts - Case Note|negligent navigation of a flooded roadway by punt]]; their liability for a [[Ferae naturae|naturally ferocious domestic beast]] which escapes down your mineshaft. | ||
And, make no mistake, there is a strain of [[ | And, make no mistake, across the ditch there is a strain of [[lawyer]] who quietly resents the tidal-wave of [[Common law|Anglo Saxon jurisprudence]] that has deluged the continent for its cross-border business. That the commercial affairs between a Belgian and an Italian should be adjudicated before the courts of England and Wales is a festering point. And he is just the sort to make his living — and thereby extract his revenge on the [[Common law|common law tradition]] — writing [[netting opinion]]s. | ||
And [[Please be aware|be assured]] that this ''ressentiment'' runs ''deep''. For, when even a righteously incensed ''juriste'' must surely have had enough — as you leaf past page 93, hoping for sight of the first annex<ref>Being the dim light in a tunnel containing 17 of the blessed things.</ref> — you will find only a new section detailing specific rules protecting claims under the ''Insurance Sector Act''. You will see this and you will beat your fists on the ground, your voice will crack and you will cry, “WHY ARE YOU EXPOSTULATING ON THE TOPIC OF FIRE AND GENERAL INSURANCE I SIMPLY DO NOT UNDERSTAND IT”. But box on you must, and you know that this ''avocat à la cour'', in his pork-pie hat, will be enjoying a sweet pastry and schnapps with his friend the [[Belgian dentist]] , and as they clink glasses they will be thinking of your toil and torment, and they will be ''enjoying every minute of it''. | |||
===[[Red Flag Act]]=== | ===[[Red Flag Act]]=== | ||