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| Exceptionally poor drafting takes a clause which didn’t really need to be said at all, and converts it into a monster. If we convert this to symbolic logic it must mean this:
| | {{icds}} takes a clause which didn’t really need to be said, and converts it into a monster. If we convert this to symbolic logic it must mean this: |
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| '''''Effective amendment or waiver {{font colour|green|<nowiki>=</nowiki>}}[[In writing]] {{font colour|red|AND}} {{font colour|green|[}}{{font colour|red|EITHER}} executed by each party {{font colour|red|OR}} confirmed by exchange of {{font colour|green|[}}{{font colour|red|EITHER}} [[Telex]] {{font colour|red|OR}} [[electronic message]]{{font colour|green|]]}}''''' | | {{quote| |
| | '''''Effective amendment or waiver {{font colour|green|<nowiki>=</nowiki>}}[[In writing]] {{font colour|red|AND}} {{font colour|green|[}}{{font colour|red|EITHER}} executed by each party {{font colour|red|OR}} confirmed by exchange of {{font colour|green|[}}{{font colour|red|EITHER}} [[Telex]] {{font colour|red|OR}} [[electronic message]]{{font colour|green|]]}}'''''}} |
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| Firstly, “[[in writing]]” means ''recorded for posterity, in words ingestable by means of the eyes, as opposed to the ears''. This is not the OED definition, I grant you — I made it up just now — but it zeroes in on thte immutable fact that, whether it is on parchment, paper, cathode ray tube, LED screen or electronic reader, you take them in by looking at them. Not [[orally]] — from the mouth — or for that matter, ''aurally'' — to the ears. Visible sentences.
| | {{in writing capsule}} |
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| So WHAT THE HELL IS “INCLUDING A WRITING EVIDENCED BY A FACSIMILE TRANSMISSION” MEANT TO ADD? What even is “a” writing? But, readers, this brief sentence gets only worse. ''Then'' it says “'''AND''' executed by each of the parties” — so what, are you saying you have to get them to sign your fax copy? —
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| And note, despite what you might think, [[email]] does not count as an electronic messaging system. So a waiver of a [[NAV trigger|NAV Trigger]] by emails is not strictly possible. Though of course waivers unsupported by consideration are generally revocable on fair notice under English law anyway.
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| As a result {{icds}} can pat itself on the back for having inserted as long ago as 1992 what, at the time, was an unnecessary clause but which turned out to anticipate a rather woeful decision of the Supreme Court in 2018.
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| {{no oral modification capsule}}
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