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What the eye don’t see the chef gets away with (view source)

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}}A vital part of pragmatic jurisprudence, neatly captured by the {{tag|Latin}} {{t|maxim}}, that I made up: ''[[quod oculo non videt coquus non est culpandum]]''
}}A vital part of pragmatic jurisprudence, neatly captured by the {{tag|Latin}} {{t|maxim}}, that I made up: ''[[quod oculo non videt coquus non est culpandum]]''
===Representations you can never know are false until it is too late===
===Representations you can never know are false until it is too late===
[[Covenant]]s, [[representations]] or [[warranties]] in two flavours:
[[Covenant]]s, [[representations]] or [[warranties]] by which you expect counterparties to promptly advise you of their [[breach of contract]] to you. The present contract, or another one.  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 drawing your client’s attention to it? You are, it is submitted, not. Indeed, practically speaking, you are making things worse. Now of course we don’t condone wilful breach of contract, but we do observe that you should expect it. It might not be good behaviour, but it ''is'' rational. 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''.
*Those by which you expect counterparties to promptly advise you of their breach of contract to you
*Those the breach of which you cannot realistically expect to ever find out about, unless the counterparty owns up to them.


===Needlessly stating the bleeding obvious to your own cost===
===Needlessly stating the bleeding obvious to your own cost===
To take another example which hails from the world of contract [[negotiation]] and is as good a practical justification for plain English as anything. Generalities 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 ones affiliates may somehow be involved in your provision of contractual services, notwithstanding the obvious truth that, in a world of international finance across borders whose perimeters are petulantly defended by parochial authorities requiring local fealty, the involvement of your local affiliates follows and certainly as night does day. Be that as it may this fellow object to it, and will rail against it with all his might if given the opportunity.<ref>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.</ref>
To take another example which hails from the world of contract [[negotiation]] and is as good a practical justification for [[plain English]] as anything. Generalities 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 international finance across borders whose perimeters are petulantly defended by parochial authorities requiring just that kind of local fealty, the involvement of local affiliates follows and 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.<ref>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 dissonance]]s that provide endless amusement for those engaged in the provision of legal advice to the financial services industry.</ref>
 
If you say, for example:
{{quote|“the Service Provider [[shall be entitled to]] pass information to those of its [[employee]]s, [[agent]]s or [[affiliate]]s, and [[for the avoidance of doubt]] any [[employee]]s or [[agent]]s 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 nut this out.}}


Some might ask, why must one’s correspondents 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.  
Some might ask, why must one’s correspondents 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.  
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{{legal drafting capsule}}
{{legal drafting capsule}}


''So don’t give him the opportunity''. You have a choice whether to buy yourself this argument. If you say, for example, “the Service Provider [[shall be entitled to]] pass information to those of its [[employee]]s, [[agent]]s or [[affiliate]]s, and [[for the avoidance of doubt]] any [[employee]]s or [[agent]]s 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 nut this out.
''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, much less that you meant to include them. ''What the eye don’t see the chef gets away with''.
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, much less that you meant to include them. ''What the eye don’t see the chef gets away with''.
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