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 {{Drop|[[Qualities of a good ISDA|F]]|airness as an}} abstract quality seems like one of those lip-servicey, all-very-well-in-theory ideas that got you good grades in [[alternative dispute resolution]] class but will ship a haymaker to the jaw on first contact with reality. We are taught to treat legal [[negotiation]] as a kind of trench warfare: as if we are facing a mortal foe and not a valued customer. It is true that customers tend to be similarly disposed, so ''fairness'' never gets a chance to break out.
-This is, in theory, odd. Why the hostility? After all, between good-faith traders in the marketplace, commercial negotiation is no [[single round prisoner’s dilemma]]. To show fairness is not to show weakness, but ''strength''. We might have an answer by asking: [[cui bono]]?<ref>Usually, when JC asks this rhetorical question, the answer is the same: the [[agent]]. This is no exception.</ref>
+This is, in theory, odd. Why the hostility? After all, between good-faith traders in the marketplace, commercial negotiation is no [[single round prisoner’s dilemma]]. To show fairness is not to show weakness, but ''strength''.
-JC is, by lifelong experience, a [[sell-side]] guy: he comes at this from the perspective of a business contracting with its customers. Merchant and customer are, generally, on the same side: at the limit their interests conflict, but gently: the merchant wants a [[commission]] or a mark-up, the customer wants a good price, but beyond that each wishes earnestly for the other’s continued prosperity.
+Conundrums like this usually boil down to variations of the [[agency problem]] and can be untangled by asking, [[cui bono]]? Usually, it will be an [[agent]] such as like a professional adviser who is “making herself useful” by “[[for the avoidance of doubt|avoiding doubt]]”. This is no exception.
-Things ''can'' get chewy at the extremes — but most dealers and most customers never get near a [[tail event|chewy extreme]].
+JC is, by lifelong experience, a [[sell-side]] guy: he comes at this from the perspective of a provider of financial services contracting with people who want them. Merchant and customer are, her as in any marketplace, generally on the same side: at the limit, their interests conflict, but gently: the merchant wants a [[commission]] or a mark-up, the customer wants a good price, but beyond that each wishes earnestly for the other’s continued prosperity.
-Sell-siders may occasionally engage with ostensible ''hostiles'' — competitors, for example — but when we do, there is an unspoken pact of [[good faith]] for the limited ends which have brought our warring sides together. We must, at some level, trust one other or at least have a common interest. If we did not, would not contract at all.<ref>[[David Graeber]] makes a fascinating point when discussing the ''non''-origin of currency out from [[barter]]: [[barter]] is an arm’s length trade of equivalent goods conducted between parties who are dispositionally ''rivals'' and not partners. Once the exchange happens, nothing is left on the table; there is no presumption of enduring goodwill, no expectation of further business, or any kind of obligation undischarged. A barter is an exchange conducted with untrusted aliens. Inside your community, where there is trust, we are less compelled to extract our precise pound of flesh: there is a give and take; we let obligations lie undischarged and they acquire a moral quality. These are the ties that bind — the imperative becomes to ''avoid'' fully discharging our dues to each other. This is the relationship we should aspire to with our customers. We trust them to pay later — we extend ''credit''. (Hence money emerged not from fair value barter with strangers but as a way of evidencing indebtedness amongst those who knew each other. You don't extend credit to aliens.</ref>
+Things ''can'' get chewy at the extremes when large sums of money are involved — but most dealers and most customers never get near a [[tail event|chewy extreme]].
-So we presume [[good faith]] in any negotiation: ''some'' level of trust. We don’t negotiate with terrorists. If you can’t trust your counterparts, you fall into the “{{plainlink|https://www.bbc.co.uk/iplayer/episode/m001w2dd/the-traitors-australia-series-2-episode-9|traitor’s dilemma}}”. This makes for good TV, but bad business.
+Sell-siders occasionally engage with ostensible ''hostiles'' — competitors, for example — but when we do, there is an unspoken pact of [[good faith]] for the limited ends which brought the warring factions together. We must, at some level, trust one those with whom we contract. Me must have some common interest. If we did not, we would not contract at all. No-one enters a contract she expects her counterparty to break.
-In any case, the “merchant-to-customer” contract is, by a landslide, the most common kind. Once finalised, these are filed somewhere and never again reviewed, even should there later be an argument. Those with any [[inhouse counsel]] experience of bona fide, non-existential, customer disputes know one thing: if there is any doubt — and frequently, when there isn’t — ''the business will roll over''. No-one takes a point with a [[Insolvency|solvent]] client.
+Sidenote: [[David Graeber]] makes a fascinating point when discussing the ''non''-origin of currency out from [[barter]]: [[barter]] is an arm’s length trade of equivalent goods conducted between parties who are dispositionally ''rivals'' and not partners. Once the exchange happens, nothing is left on the table; there is no presumption of enduring goodwill, no expectation of further business, or any kind of obligation undischarged. A [[barter]] is a delivery-versus-payment exchange conducted between untrusting aliens. The contract ends upon exchange: no trust is needed. Inside your community, where there ''is'' trust, we are less compelled to extract a pound of flesh: there is a give and take; we let obligations lie undischarged on trust they will be performed later. Our gestures acquire a moral quality. These are the ties that bind — the imperative becomes to ''avoid'' fully discharging our dues to each other. This is the relationship we should aspire to with our customers. We trust them to pay later — we extend ''credit''. We do them favours, they appreciate it, and reward us with social capital, not economic  capital, in the shape of more business.<ref>Hence, money emerged not from fair value barter with strangers, but as a way of evidencing and keeping track of indebtedness among friends. You don't extend credit to aliens.</ref>
+So, we presume [[good faith]] in any negotiation: ''some'' level of trust. We don’t negotiate with terrorists. If you can’t trust your counterparts, you fall into the “{{plainlink|https://www.bbc.co.uk/iplayer/episode/m001w2dd/the-traitors-australia-series-2-episode-9|traitor’s dilemma}}”. This makes for good TV, but bad business.
+In any case, the “merchant-to-customer” contract is, by a landslide, the most common kind. Once finalised, these are filed somewhere and never again reviewed — it is bad form to pay too much attention the letter of the deal, even should there later be an argument.<ref>{{maxim|if you have to go to the contract, you’vecalready lost}}.</ref> Those with any [[inhouse counsel]] experience of bona fide, non-existential, customer disputes know one thing: if there is any doubt — and frequently, when there isn’t — ''the business will roll over''. No-one takes a point with a [[Insolvency|solvent]] client.
 This is nothing more than common sense: you stand to gain far more in future revenue by preserving your relationship even where that means excusing a customer the occasional gaffe than you do by taking a literal stance on technical errors.