What the eye don’t see the chef gets away with

Maxims and arrows Go Premium A chef getting away with what the eye don’t see, yesterday. A hearty collection of the JC’s pithiest adages. Index: Click ᐅ to expand: Maxim Comments? Questions? Suggestions? Requests? Insults? We’d love to 📧 hear from you. Sign up for our newsletter.

A vital part of pragmatic jurisprudence, neatly captured by the JC’s homely, home-made Latin 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

Covenants, 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 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.

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 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.

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 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.

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, much less that you meant to include them. What the eye don’t see the chef gets away with.

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 goals, that bane of modern existence.

See also

• Immediately, versus as soon as reasonably practicable
• Quod non potes videre, non mihi reprehendo
• Representations and warranties
• Goal