82,891
edits
What the eye don’t see the chef gets away with: Difference between revisions
What the eye don’t see the chef gets away with (view source)
Revision as of 20:08, 15 November 2021
, 15 November 2021no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| (12 intermediate revisions by the same user not shown) | |||
| Line 1: | Line 1: | ||
A vital part of pragmatic jurisprudence, neatly captured by the {{tag|Latin}} maxim. | {{a|maxim| | ||
[[File:Terry.jpg|450px|thumb|center|A chef being hanged for a kipper, yesterday.]] | |||
}}A vital part of pragmatic jurisprudence, neatly captured by the JC’s homely, home-made {{tag|Latin}} {{t|maxim}}: “''[[quod oculo non videt coquus non est culpandum]]''”: what the eye don’t see, the chef gets away with. | |||
===Representations you can never know are false until it is too late=== | |||
[[Covenant]]s, [[representations]] or [[warranties]] by which you expect counterparties to promptly advise you of ''their'' [[breach of contract]] to ''you''. | |||
''[[ | That’s right, folks: if you don’t admit you’re in [[breach of contract]], ''you will be in [[breach of contract]]''. Can anyone see the problem here? | ||
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 {{sex|her}} 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 {{sex|her}} 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 {{sex|her}}. 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 {{sex|she}} 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'' {{sex|him}}? | |||
{{legal drafting capsule}} | |||
''So don’t give her the opportunity'': you have a choice whether to buy yourself this argument. | |||
If, instead, you say: | |||
{{quote|“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? | |||
===[[Performance appraisal]]s=== | |||
There is a dark inversion of this in the performance appraisal: What the ''Man'' don’t see, ''you'' don’t get no credit for. Hence, [[SMART]] [[goal]]s, that bane of modern existence. | |||
{{sa}} | |||
*[[Immediately]], versus [[as soon as reasonably practicable]] | |||
*[[Quod non potes videre, non mihi reprehendo]] | *[[Quod non potes videre, non mihi reprehendo]] | ||
*[[Representations and warranties]] | *[[Representations and warranties]] | ||
*[[Goal]] | |||
{{ | {{ref}}{{c|Psychology}} | ||
{{ | |||