What the eye don’t see the chef gets away with
|Maxims and arrows|
Representations you can never know are false until it is too late
For such a covenant to be meaningful it must be a breach about which you cannot realistically expect to ever find out, unless your counterparty owns up. And, I suppose, so he might. But isn’t the fellow who does a little bit like the chap who blasphemes at his own stoning? If you are already in fundamental breach of your contract, are you really making things any worse for yourself by neglecting to draw your client’s attention to it, as you promised you would? You are not. Indeed, practically speaking, you are making things worse. Now of course the JC would never condone the wilful breach of contract — God forbid — but we do observe that you should expect it. It might not be good behaviour, but it is rational, and probably even optimal for the longevity of the contract. There might be a chance to fix the latent breach before anyone notices. What the eye don’t see the chef gets away with. The saying goes: you might as well be hanged for a sheep as a lamb. And better still, if you keep shtum, you’ll get away with both.
Conclusion: don’t waste your time insisting on impossible-to-prove representations, and be phlegmatic about granting them to the other fellow if that is the only way to get across the line.
Needlessly stating the bleeding obvious to your own cost
A different shade of this hue hails from the world of contract negotiation and is as good a practical justification for plain English as I know. The beauty of vague generalities: they hide a multitude of ostensibly odious particularities.
Let us say your opposing legal eagle has, in his repertoire, an automatic, reflexive aversion to the idea that one’s affiliates may somehow be involved in your provision of contractual services, notwithstanding the obvious truth that, in a world of finance across borders whose perimeters parochial authorities defend with stringent demands of local fealty, the involvement of one’s local affiliates follows as certainly as night does day. Be that as it may, this fellow objects to it, and will rail against it with all his might if given the opportunity.
If you say, for example:
“the Service Provider shall be entitled to pass information to those of its employees, agents or affiliates, and for the avoidance of doubt any employees or agents of any such affiliate, to the extent such employee, agent or affiliate, or employee or agent of such affiliate, requires it in order to provide the Services hereunder”
you may rest assured that your learned friend will take up the cudgels you have so kindly offered him. Prudence would recommend you cancel any plans you may have made for dinner with your spouse any time in the next fortnight, while the two of you thrash this out.
Now you might ask, why must he be so bloody-minded? I mean really, who cares about affiliates? Well, apparently, you do. If you did not, you would not go to such peripatetic lengths to mention them. I mean, just look at your text: it is guilty; defensive; cowed; its meticulous articulation of your affiliates’ involvement has the air of a confession. Any opposing lawyer will naturally fear that kind of particularisation. Can you blame him?
Remember the starting assumption of all legal drafting: there is no frippery. Legal language is utilitarian. Spartan. Terse. It does not engage with trifles. What need not be said is not said. There are no incidentals, no figures — no metaphors in a legal tract. One leaves no scope for misinterpretation. Thus, every legal eagle addresses legal language presented to her the same way. If it is there, it must mean something. It must need to be said. What am I missing? This is the fear. She guards against this fear by deploying defensive language in return. The irony of this devotional commitment to abstemious precision is that when two or more practitioners are pitted against one another in its service, it leads so inexorably to such flabby, redundant, baroquity.
So don’t give him the opportunity. You have a choice whether to buy yourself this argument.
If on the other hand, if you say:
“we may share your details within our organisation on a “need-to-know” basis only to progress the Project”
there is a level chance that it won’t even occur to your correspondent that your “organisation” might have affiliates he can object to, much less that you meant to include them. What the eye don’t see the chef gets away with. Some might pick up the point in any case, to be sure, but why ensure it?
- Immediately, versus as soon as reasonably practicable
- Quod non potes videre, non mihi reprehendo
- Representations and warranties
- Curiously, people like this seem more bothered that you may share their information with your own affiliates than with your independent professional advisers. This is just one of the hundreds of cognitive dissonances that provide endless amusement for those engaged in the provision of legal advice to the financial services industry.