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| [[Remedies Cumulative - ISDA Provision|The]] [[common law]], as we know, has done a fine job of shaping and polishing a set of remedies for [[breach of contract]] over the centuries — remedies which are, broadly, agnostic to what the contract happens to say. By the time we come to ask the question that intellectual construct, after all, is ''broken'': in tatters. Fruity expectations of a healthy, long and fecund forward relationship lie suffocated on the desiccating salted earth. The contract is an ex parrot: no longer a reliable guide to the parties’ expectations. It is the court to draw upon its centuries of analogy to put the aggrieved persons in the best shape it can.
| | {{isda 9(d) summ|isdaprov}} |
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| Thus, the [[common law]] provides a framework of [[causation]], [[contributory negligence|contribution]], [[Remoteness of damage|foreseeability]], [[proximity]] and [[Indeterminate liability|determinacy]] of loss that it can apply to a wronged party to work out a juridical compensation for its loss of bargain.
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| It’s all there: that is the antique furniture the laws of England bestow. It seems, also, counterproductive — passive aggressive, almost — for the parties to negotiate, in detail, what should happen between them if they don’t do what they promise to do. Odd, right? Bloody-minded. Indicative of a total lack of trust, you might say.
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| Yet, that is exactly what the {{isdama}} spends its crucial central passages doing. Finance contracts tend to be far more categorical about how innocent parties can detonate defaulters than anything else: there is not much to be said on the happy dimensions of lending money, after all: I give it to you, you give it back, you pay me some interest in the meantime.
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| So, legislating for defaults, potential defaults, terminations, close out, and exercise of drastic rights. We are amongst financiers; we should expect paranoia.
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| There is one last paranoia. It is a sort of ''meta''-paranoia. It is this: What happens if, in carefully writing down all my rights upon your Event of Default, I inadvertently undo some better right that I might have at common law? Does my right to send a Section {{isdaprov|6(a)}} and kick off that infernal close-out process cut off some better, quicker remedy I might access just by declaring a repudiation of the contract and suing for damages?
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| Most of the time, you would think, it should not, but if it does, Section {{isdaprov|9(d)}} is your chosen slug of [[boilerplate]]. This vouches safe your common law rights notwithstanding anything explicit in the contract.
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