Conclusive evidence clause: Difference between revisions

Jump to navigation Jump to search

Conclusive evidence clause (view source)

Revision as of 10:56, 2 August 2019

10 bytes removed ,  2 August 2019
no edit summary
No edit summary
No edit summary
Line 9: Line 9:


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?
In the traditional banking world — the one where lenders are prudent community pillars, obtain only the indemnities they need and that can be justified before a jury of their peers, and borrowers 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]].


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, put there in the process of pinning a [[certificate of indebtedness]] between their shoulder blades.
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 one with a love of principle over common sense such as I will feel cowed and will give in. Life is too short.


But, good luck enforcing that kind of {{tag|indemnity}}. And, really, good luck trying to stick in a clause saying “In the absence of [[manifest error]], a certificate from the Lender as to any such “Loss” will be conclusive evidence of the amount owing” and getting a court to pay it any attention.
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}}
Retrieved from "https://jollycontrarian.com/index.php?title=Special:MobileDiff/32412"

Navigation menu