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Severability: Difference between revisions
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Straightforward enough. But, still hypotheticals fester, at least in the minds of [[Mediocre lawyer|assiduous draftspeople]] the world over. What if only a ''teeny'' little bit of it is [[Illegality|illegal]]? Can I still get on with the rest of it? And if, otherwise, not, will it help if I say in my contract that any bit which later becomes illegal — or even turns out to have been illegal the whole time — doesn’t somehow count any more, so I can carry on with the rest of it? | Straightforward enough. But, still hypotheticals fester, at least in the minds of [[Mediocre lawyer|assiduous draftspeople]] the world over. What if only a ''teeny'' little bit of it is [[Illegality|illegal]]? Can I still get on with the rest of it? And if, otherwise, not, will it help if I say in my contract that any bit which later becomes illegal — or even turns out to have been illegal the whole time — doesn’t somehow count any more, so I can carry on with the rest of it? | ||
The [[JC]] | ===On crystal balls and unexpected inequities=== | ||
The [[JC]]’s general concerns about [[boilerplate]] are here writ large. | |||
So, firstly, an illegality speaks to some serious misapprehension on the parties’ part as to the legitimacy of what they are agreeing to do. Even if their enterprise was kosher when they agreed it, we must presume, giving their intelligence the benefit of the doubt, that they didn’t seriously expect a country’s commercial courts to continue to uphold an enterprise that its criminal courts would put people in jail for. | |||
This misapprehension might be fundamental enough to undermine their [[Consensus ad idem|meeting of minds]] in the first place — in which case, what value a [[severability]] provision? — but even if it is not, it will be quite the stroke of luck if the lost ''benefit'' from the illegal, severed, part of the contract falls equally between the parties. | |||
Odds are, that is to say, that the severance will favour one party over the other, in a way that, logically, they cannot predict before it happens. | |||
Say I have agreed, for a monthly fee of ten pounds, to provide you with five services, one of which later transpires to be illegal. The other four services remain valid, as does your obligation to pay me the agreed monthly retainer. So is the contract simply severed to cut out the illegal service? Must you now pay me ten pounds for ''four'' services? | Say I have agreed, for a monthly fee of ten pounds, to provide you with five services, one of which later transpires to be illegal. The other four services remain valid, as does your obligation to pay me the agreed monthly retainer. So is the contract simply severed to cut out the illegal service? Must you now pay me ten pounds for ''four'' services? | ||
Equity says there should be some adjustment of the commercials; as we | Equity says there should be some adjustment of the commercials; as we didn’t have a crystal ball, resolving this at the outset of a contract, with a [[severability]] clause seems cavalier. Yet this is what this boilerplate seems to do | ||
===Lady Macbeth=== | |||
There is an element, too, of the lady protesting too much here: why would you enter a contract if you thought part of it might be illegal? What kind of operation are you running? | |||
If the choice is between blindly allocating unforeseeable losses at the start of the relationship with a [[severability]] clause, and hoping the parties can be adult enough to come together in good faith to sort out a compromise as and when the unforeseeable becomes a reality later — trusting each other, in other words, to [[Be a good egg|be good eggs]] and [[Non mentula esse|not dicks]] — then the [[JC[]] knows where he’d rather be, and who he would rather be trading with. | |||
{{sa}} | {{sa}} | ||
*[[Illegality]] | *[[Illegality]] | ||
*[[Bonum ovum esse]] | |||