My business law professor just emailed me this article, and I wondered if any of the other people here involved with the law had heard about this yet.
Article Link (http://www.abajournal.com/news/article/bankruptcy_judge_orders_lawyers_to_stop_using_capitalization_with_abandon)
QuoteJudge Orders Lawyers to Stop Using Capitalization 'With Abandon'
Posted Dec 14, 2009 9:31 AM CST
By Debra Cassens Weiss
A federal bankruptcy judge is fed up with lawyers who use superfluous words and too much capitalization, and he has directed them to stop it.
U.S. Bankruptcy Judge Robert Kressel of Minnesota took a stand against legalese in new guidelines (PDF) for lawyers preparing proposed orders in his court, Legal Blog Watch reports, citing a story by Lawyerist.
Kressel says lawyers should eliminate superfluous words such as "hereby," "herein" and "heretofore entered in this case." The phrases "serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish," he writes. "Compare the meaning of 'Now, therefore, it may be and is hereby ordered that' with 'It is ordered.' "
Kressel also observes that "lawyers love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized."
Kressel also says lawyers need to keep their plurals and possessives "straight and consistent," need to watch verb tense, and need to use the possessive "its" and the contraction "it's" correctly.
Don't use "and/or," he counsels. But do use articles such as "the," "a," and "an" as appropriate. Refer to "the debtor," rather than "debtor," for example.
"Write the way you would speak," he says.
Personally, it's not a big deal to me; my writing does tend to sound kind of stiff and formal, but I tend to speak in a fairly stiff and formal fashion. I do try to stop shy of using obscure prepositions and temporal adjectives, and I don't randomly capitalize (unless I'm citing, and then I figure accuracy is critical, so I'll repeat it with misspellings and all).
Any of you guys guilty of this?
The plain language movement has been around for at least 15-20 years. Nothing new.
Good.
Its not like they're in school and have a word limit to reach, there's no need.
Purging legal drafting of unnecessary 'legalize" is totally commonplace. Google "plain drafting".
Generally, capitalization indicates (or should indicate) defined terms in documents such as contracts.
I'm familiar with plain drafting, but that's usually talking about contracts. In fact, I've been using plain drafting all along for contracts. This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).
That's not limited to law by the way. I am working with technical documentation and everybody who has ever read a manual knows that most of them are barely comprehensible. It takes a lot of thought to actually get it right.
Quote from: DontSayBanana on December 15, 2009, 04:46:17 PM
I'm familiar with plain drafting, but that's usually talking about contracts. In fact, I've been using plain drafting all along for contracts. This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).
Same concept. Not sure why you think people distinguished between contractual drafting and other forms of legal writing.
Quote from: crazy canuck on December 15, 2009, 05:23:04 PM
Quote from: DontSayBanana on December 15, 2009, 04:46:17 PM
I'm familiar with plain drafting, but that's usually talking about contracts. In fact, I've been using plain drafting all along for contracts. This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).
Same concept. Not sure why you think people distinguished between contractual drafting and other forms of legal writing.
What he said. ;)
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Quote from: Malthus on December 15, 2009, 05:29:18 PM
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism. Plus, defensive lawyering always make you add, rather than subtract, verbage (so that
force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).
Quote from: grumbler on December 15, 2009, 05:45:18 PM
I think the fact that lawyers want to rely on time-tested templates for their legal work ...
In my experience that is ironically when lawyers get into the most trouble.
Quote from: Malthus on December 15, 2009, 05:29:18 PM
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Say what? ;)
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
Quote from: grumbler on December 15, 2009, 05:45:18 PM
Quote from: Malthus on December 15, 2009, 05:29:18 PM
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism. Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).
You've seen nothing until you have seen assumptions/disclaimers in a banking opinion. Essentially, you get several pages which tell you the opinion is pretty useless. :D
Quote from: Zanza on December 15, 2009, 05:22:54 PM
That's not limited to law by the way. I am working with technical documentation and everybody who has ever read a manual knows that most of them are barely comprehensible. It takes a lot of thought to actually get it right.
And don't even get me started on marketing texts.
Qualifications for being a lawyer in Poland: Being able to read. Suddenly, things make a lot more sense.
Concerning the OP, I think like in most cases these drafting hints are about 1/3 of the no-brainer stuff, 1/3 of something debatable and 1/3 of total bullshit.
For example, the capitalization thing is very contextual. Sure, in documents where you are not going to use the term more than 2-3 times, there is little point to capitalize/define the term; same if it is obvious from the context that you are always referring to the same "court" or "debtor". But this is not always the case - sometimes you have numerous similar concepts/entities to describe and without defining/capitalizing them, it becomes a mess.
Same for the "and/or". In logic "or" can me either a situation of a disjunctive alternative (i.e. it's either A or B, but never both), or a conjunctive alternative (i.e. it's either A, B or both A and B). By stating "and/or" you are making sure it's the latter, rather than the former.
Quote from: grumbler on December 15, 2009, 05:45:18 PM
Quote from: Malthus on December 15, 2009, 05:29:18 PM
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism. Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).
Relying on templates *creates* problems, and litigation. The reason is that the "template" was developed with fact situation A in mind, and may be wholly inappropriate for fact situation B. Moreover, the lawyer using the template may not in fact know all the reasons various clauses were there for in the first place.
Legal drafting is hard work and requires real thought about what possible risks and consequences may arise in the future. Myself, I *read* other people's contracts (and my own previous ones) to grab good ideas where I can, but I never
use templates - I'll copy clauses to be sure, but never without pretty careful consideration.
My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.
In my experience the lawyers copying some hoary old precedent with a page-long
force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that
should be dealt with.
Quote from: Judas Iscariot on December 15, 2009, 06:12:08 PM
Qualifications for being a lawyer in Poland: Being able to read. Suddenly, things make a lot more sense.
Are you referring to anything particular in my posts, or just trolling/being a retard?
Quote from: Malthus on December 15, 2009, 06:14:34 PM
Quote from: grumbler on December 15, 2009, 05:45:18 PM
Quote from: Malthus on December 15, 2009, 05:29:18 PM
In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.
Chucking in legalese tends to contradict all of these points.
Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism. Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).
Relying on templates *creates* problems, and litigation. The reason is that the "template" was developed with fact situation A in mind, and may be wholly inappropriate for fact situation B. Moreover, the lawyer using the template may not in fact know all the reasons various clauses were there for in the first place.
Legal drafting is hard work and requires real thought about what possible risks and consequences may arise in the future. Myself, I *read* other people's contracts (and my own previous ones) to grab good ideas where I can, but I never use templates - I'll copy clauses to be sure, but never without pretty careful consideration.
My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.
In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with.
The problem is you sometimes run into stupid clients, who are happy to pay X for a 30 pages contract draft, but not for a 10 pages draft on the same issue - even if the latter probably takes longer to draft. :P
Quote from: Martinus on December 15, 2009, 06:14:51 PM
Quote from: Judas Iscariot on December 15, 2009, 06:12:08 PM
Qualifications for being a lawyer in Poland: Being able to read. Suddenly, things make a lot more sense.
Are you referring to anything particular in my posts, or just trolling/being a retard?
It's been a long standing joke that you're not a lawyer
*, did you not get the meme memo? :)
*Clarified for those who want it. Thanks ULMONT! You're my hero or something.
Quote from: Martinus on December 15, 2009, 06:01:41 PM
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
What I see a lot of is so-called "agreements to agree", such as various (often complicated) ways of saying that the parties agree to hold negotiations in the future on an essential term of the contract, at their discretion. Unenforceable, but some lawyers & clients love doing it.
Quote from: Malthus on December 15, 2009, 06:14:34 PM
My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.
In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with.
I wrote the contract by which I bought my present house, and only paid a lawyer to look at it. I had, of course, a couple of examples to go on, and just put in what applied to my case. The lawyer added three words, and that was it. Bottom line, short and clear is cheaper and more satisfying to both parties to the contract.
Quote from: Judas Iscariot on December 15, 2009, 06:18:00 PM
It's been a long standing joke that you're not just by me, did you not get the meme memo? :)
What does Martinus do that is particularly unjust in your eyes?
Quote from: Malthus on December 15, 2009, 06:23:41 PM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
What I see a lot of is so-called "agreements to agree", such as various (often complicated) ways of saying that the parties agree to hold negotiations in the future on an essential term of the contract, at their discretion. Unenforceable, but some lawyers & clients love doing it.
The problem with such a representation, under Polish law at least, is that if the party making a representation about the agreement being binding, is not able to make the agreement binding, it also makes the representation non-binding.
Essentially, it's an assertion.
Quote from: grumbler on December 15, 2009, 06:29:32 PM
Quote from: Malthus on December 15, 2009, 06:14:34 PM
My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.
In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with.
I wrote the contract by which I bought my present house, and only paid a lawyer to look at it. I had, of course, a couple of examples to go on, and just put in what applied to my case. The lawyer added three words, and that was it. Bottom line, short and clear is cheaper and more satisfying to both parties to the contract.
Generally speaking, yes.
There are some relationships in which the complexity of the relationship requires a complex agreement (a good example is the so-called "tripartite' agreements that typically govern clinical trials - I draft these all the time, and they are invariably complicated becase they involve three or more parties - investigator, institution and sponsor - in a relationship with lots of extreme litigation risk built right in). Another example is asset purchase agreements between companies.
But these are typically agreements seen mostly by other lawyers.
Quote from: Habbaku on December 15, 2009, 06:33:47 PM
Quote from: Judas Iscariot on December 15, 2009, 06:18:00 PM
It's been a long standing joke that you're not just by me, did you not get the meme memo? :)
What does Martinus do that is particularly unjust in your eyes?
*sigh* Am I the only one who has seen Grumbler and others claim Martinus isn't actually a lawyer, or a crap one?
Quote from: Judas Iscariot on December 15, 2009, 09:19:44 PM
Quote from: Habbaku on December 15, 2009, 06:33:47 PM
Quote from: Judas Iscariot on December 15, 2009, 06:18:00 PM
It's been a long standing joke that you're not just by me, did you not get the meme memo? :)
What does Martinus do that is particularly unjust in your eyes?
*sigh* Am I the only one who has seen Grumbler and others claim Martinus isn't actually a lawyer, or a crap one?
I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.
Quote from: Malthus on December 15, 2009, 06:46:12 PM
Generally speaking, yes.
There are some relationships in which the complexity of the relationship requires a complex agreement (a good example is the so-called "tripartite' agreements that typically govern clinical trials - I draft these all the time, and they are invariably complicated becase they involve three or more parties - investigator, institution and sponsor - in a relationship with lots of extreme litigation risk built right in). Another example is asset purchase agreements between companies.
Just make sure there are no Italians involved and it should go fine.
Quote from: Habbaku on December 15, 2009, 06:33:47 PM
Quote from: Judas Iscariot on December 15, 2009, 06:18:00 PM
It's been a long standing joke that you're not just by me, did you not get the meme memo? :)
What does Martinus do that is particularly unjust in your eyes?
Interfering with proper business.
Quote from: ulmont on December 15, 2009, 09:23:10 PM
I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.
Right, so I fucked up my second statement. The first made it more clear, alas it wasn't in the quote train. My apologies. Thanks for the clarification, you truly are a life saver.
Quote from: Judas Iscariot on December 15, 2009, 09:47:01 PM
Quote from: ulmont on December 15, 2009, 09:23:10 PM
I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.
Right, so I fucked up my second statement. The first made it more clear, alas it wasn't in the quote train. My apologies. Thanks for the clarification, you truly are a life saver.
This is Languish. Surely you don't expect people to actually understand typos and move on, do you? That's not the Languish Way(TM). The Languish Way is to pretend not to understand it (either in a humorous way, or a trolling way), and then take the entire topic off track.
FWIW, I think Habs was kidding. I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.
Legalese should simplify a text for lawyers, even if it distances it from the every day reader. I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms. It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.
Quote from: Sheilbh on December 15, 2009, 11:02:50 PM
Legalese should simplify a text for lawyers, even if it distances it from the every day reader. I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms. It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.
IMO it's some of both. Sometimes, it's easier and better to use a term of art rather than a cumbersome circumlocution. In other cases, it's superfluous.
From the judge's original list:
The superfluous words - "hereby," "herein," and "heretofore entered in this case" don't do much work and could be easily omitted or rephrased.
For capitalization of "court," "motion," "movant," "debtor"...
"Court" usually indicates "this court where the proceeding is ongoing," and so can be helpful, if you are also referring to what other "courts" have done in other cases.
The "Motion" doesn't add a lot, but it doesn't really hurt any comprehension. Capitalizing "Debtor" similarly help as per "Court," especially if you're going to use Debtor as a proper name later on.
And really, what's the harm in saying "Debtor owes" rather than "the debtor owes"? I mean, "the debtor" gets old just as fast and takes up more space...
And using "its" versus "it's" correctly is just better English rather than a legalese - plain English distinction.
In conclusion, while there are some legitimate gripes regarding legalese, most of what this judge is complaining about is just stylistic nitpicking.
Quote from: grumbler on December 15, 2009, 10:16:50 PM
FWIW, I think Habs was kidding. I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.
Indeed. I found it amusing that someone would proclaim that the only prerequisite to be a Polish lawyer was "being able to read," then monumentally fuck up their syntax in a relatively basic sentence.
Quote from: Habbaku on December 15, 2009, 11:29:34 PM
Quote from: grumbler on December 15, 2009, 10:16:50 PM
FWIW, I think Habs was kidding. I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.
Indeed. I found it amusing that someone would proclaim that the only prerequisite to be a Polish lawyer was "being able to read," then monumentally fuck up their syntax in a relatively basic sentence.
Hence why I'm not a Polish Lawyer. :lol:
I have to check a couple dozens of contracts vs. invoices every month. All the "Whereas ...", "Whereas ...", "Now therefore ..." and all those other meaningless terms that begin most sections make me want to claw my eyes out.
Quote from: Martinus on December 15, 2009, 06:01:41 PM
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
Most anglo business people dont like the state's statutory default provisions, and most contract negotiations between sophisticated parties involve trying to allocate risk differently than some legistor saw fit to do it.
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
Quote from: Sheilbh on December 15, 2009, 11:02:50 PM
Legalese should simplify a text for lawyers, even if it distances it from the every day reader. I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms. It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.
I have no problem with the use of technical language for technical topics; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.
I do take issue with this particular judges' complaints though. For example, capitalization of certain terms often *adds* meaning - it is a common technique to define a term once and then use capitalization afterwards. Obviously if the capitalization is
random it is no good, because that is positively confusing.
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I
don't the fact that I
said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
Quote from: Malthus on December 16, 2009, 09:44:10 AM
...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.
The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:
Judgment 1 (the plain english model).
Smith owes Jones $1,000.
Judgment 2 (the antiquated legalese model)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue.
Judgment 3 (the antiquated model with extra special magic word)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.
Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).
Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.
Quote from: Malthus on December 16, 2009, 09:53:18 AM
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.
Quote from: Rasputin on December 16, 2009, 09:56:53 AM
Quote from: Malthus on December 16, 2009, 09:44:10 AM
...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.
The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:
Judgment 1 (the plain english model).
Smith owes Jones $1,000.
Judgment 2 (the antiquated legalese model)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue.
Judgment 3 (the antiquated model with extra special magic word)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.
In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.
Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).
Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.
In this case, "forthwith" isn't meaningless verbiage, but meaningful technical language that indicates when the judgment is due.
The "plain english" statement is not in fact the same statement rendered into plain english, since it is lacking in the same information.
A better example would be "My judgment is that Smith owes Jones $1000, which he must pay now".
I have no idea of course whether under Florida law you need to use the verbal formula "have and recover ... let execution issue ... forthwith". If so, quite naturally it must be included.
Quote from: Rasputin on December 16, 2009, 09:58:32 AM
Quote from: Malthus on December 16, 2009, 09:53:18 AM
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.
It's not much of a benefit. They would generally have that remedy anyway, if in fact they had been defrauded ... and if it is untrue (that is, a real corporate officer did not get the required internal approvals) the indoor management rule would generally operate to the other parties' benefit: they could enforce the contract against the company.
Quote from: Malthus on December 16, 2009, 10:14:17 AM
Quote from: Rasputin on December 16, 2009, 09:58:32 AM
Quote from: Malthus on December 16, 2009, 09:53:18 AM
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.
It's not much of a benefit. They would generally have that remedy anyway, if in fact they had been defrauded ... and if it is untrue (that is, a real corporate officer did not get the required internal approvals) the indoor management rule would generally operate to the other parties' benefit: they could enforce the contract against the company.
they might be able to enforce the contract as a result of apparent authority, but they might not--it's often better to have such an express warranty on material transactions although possibly not necessary
my point is that the difference between unnecessary legalese and prudence, or even use of terms of art that might seem antiquated, is often not so clear
going back to my judgment example, are there synonyms to forthwith that are plainer (e.g, now, immediately, without delay), yes-- would the executive branch treat them the same way as the magic word forthwith? doubt it.
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
But if it hasn't, then such representations (which are made on behalf of the company, and not the signatory) are worthless, since it also means the signatory is not authorised to make representations that he is authorised to sign the agreement.
If the signatory was making representations on his behalf, then it would be a different story - but these representations are normally made on behalf of the party he is representing.
Quote from: Rasputin on December 16, 2009, 09:38:35 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
Most anglo business people dont like the state's statutory default provisions, and most contract negotiations between sophisticated parties involve trying to allocate risk differently than some legistor saw fit to do it.
Only that in most cases they want to allocate it exactly the way it is outlined in the relevant legislation.
Quote from: Malthus on December 16, 2009, 10:14:17 AM
Quote from: Rasputin on December 16, 2009, 09:58:32 AM
Quote from: Malthus on December 16, 2009, 09:53:18 AM
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.
It's not much of a benefit. They would generally have that remedy anyway, if in fact they had been defrauded ... and if it is untrue (that is, a real corporate officer did not get the required internal approvals) the indoor management rule would generally operate to the other parties' benefit: they could enforce the contract against the company.
Indeed. The situation would be the same under Polish law.
If such extra wording is necessary under US common law, then I guess the law is pretty primitive and formulaic.
Quote from: Rasputin on December 16, 2009, 09:56:53 AM
Quote from: Malthus on December 16, 2009, 09:44:10 AM
...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.
The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:
Judgment 1 (the plain english model).
Smith owes Jones $1,000.
Judgment 2 (the antiquated legalese model)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue.
Judgment 3 (the antiquated model with extra special magic word)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.
In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.
Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).
Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.
"For which sum let execution issue, forthwith" could just as easily be rephrased in plain English as "the judgment sum is due immediately." It even takes up less space!
Again, there are plenty of grammatical errors that show up in legalese, and it's a shame that the judge should even have to make note of them, but by and large, it's prepositions and temporal adjectives that have fallen out of common usage in English that are the sticking point.
I only make note of this because if the court invalidates documents that would be otherwise legal to penalize "legalese," that's really going to test the limits of judicial discretion. My personal feeling is that if it goes anywhere, it'll result in the ABA pushing more "plain drafting" education; considering how many guns have been leveled at the judiciary for acting unilaterally lately, I can't see them taking a chance on a judge throwing out cases simply because he doesn't like the style of the writing.
Quote from: Martinus on December 16, 2009, 10:47:10 AM
But if it hasn't, then such representations (which are made on behalf of the company, and not the signatory) are worthless, since it also means the signatory is not authorised to make representations that he is authorised to sign the agreement.
Polish law doesnt recognize the concept of ostensible authority? How is it that your contracting parties satisfy themselves that the person signing the document has actual authority?
Quote from: Martinus on December 16, 2009, 10:55:19 AM
If such extra wording is necessary under US common law, then I guess the law is pretty primitive and formulaic.
Marti, you are the guy who apparently lives in a jurisdiction that allows people to avoid contractual liablity by simply claiming the person who signed the contract didnt have the authority to do so.
Quote from: Martinus on December 16, 2009, 10:47:10 AM
Quote from: Rasputin on December 16, 2009, 09:40:52 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
...
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.
But if it hasn't, then such representations (which are made on behalf of the company, and not the signatory) are worthless, since it also means the signatory is not authorised to make representations that he is authorised to sign the agreement.
If the signatory was making representations on his behalf, then it would be a different story - but these representations are normally made on behalf of the party he is representing.
correct but they bind the signatory individually under tort law in a situation when the officer would normally have no contract exposure as the agent of a disclosed principal
Quote from: Martinus on December 16, 2009, 10:50:25 AM
Quote from: Rasputin on December 16, 2009, 09:38:35 AM
Quote from: Martinus on December 15, 2009, 06:01:41 PM
The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.
For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.
Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).
Most anglo business people dont like the state's statutory default provisions, and most contract negotiations between sophisticated parties involve trying to allocate risk differently than some legistor saw fit to do it.
Only that in most cases they want to allocate it exactly the way it is outlined in the relevant legislation.
our experiences differ
Quote from: DontSayBanana on December 16, 2009, 11:03:22 AM
Quote from: Rasputin on December 16, 2009, 09:56:53 AM
Quote from: Malthus on December 16, 2009, 09:44:10 AM
...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.
The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:
Judgment 1 (the plain english model).
Smith owes Jones $1,000.
Judgment 2 (the antiquated legalese model)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue.
Judgment 3 (the antiquated model with extra special magic word)
Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.
In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.
Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).
Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.
"For which sum let execution issue, forthwith" could just as easily be rephrased in plain English as "the judgment sum is due immediately." It even takes up less space!
Again, there are plenty of grammatical errors that show up in legalese, and it's a shame that the judge should even have to make note of them, but by and large, it's prepositions and temporal adjectives that have fallen out of common usage in English that are the sticking point.
I only make note of this because if the court invalidates documents that would be otherwise legal to penalize "legalese," that's really going to test the limits of judicial discretion. My personal feeling is that if it goes anywhere, it'll result in the ABA pushing more "plain drafting" education; considering how many guns have been leveled at the judiciary for acting unilaterally lately, I can't see them taking a chance on a judge throwing out cases simply because he doesn't like the style of the writing.
good luck with that
sometimes in representing a client its better to do what is 100% guaranteed to work rather than trying to prove a point or test the limits
Quote from: Rasputin on December 16, 2009, 01:45:21 PM
our experiences differ
I agree with you. I have never met a client who was happy with the legislative norm, nor have I dealt with any lawyers in the EU who have suggested that we not try to negotiate a better deal.
Quote from: Malthus on December 16, 2009, 09:53:18 AM
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
That kind of language does help prove ostensible authority - ie we turned our mind to whether he had authority and he confirmed it and there was nothing which ought to put us on notice otherwise.
Quote from: crazy canuck on December 16, 2009, 02:08:31 PM
Quote from: Malthus on December 16, 2009, 09:53:18 AM
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
That kind of language does help prove ostensible authority - ie we turned our mind to whether he had authority and he confirmed it and there was nothing which ought to put us on notice otherwise.
I concur; in addition to the objective indicia of apparent authority, an officer's representation of actual authority would also be probative in establishing apparent authority
of course this minutia is no where near as amusing as marty's anecdotes about dumb common law lawyers asking for needless representations or negotiating contracts to give themselves exactly what the legislature has already given them
Quote from: crazy canuck on December 16, 2009, 02:08:31 PM
Quote from: Malthus on December 16, 2009, 09:53:18 AM
I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.
It is to resolve problems like this that the Indoor Management Rule was developed.
That kind of language does help prove ostensible authority - ie we turned our mind to whether he had authority and he confirmed it and there was nothing which ought to put us on notice otherwise.
I'm not sure it would be particularly significant.
If someone signs a contract for a company, the issue is whether the other party has good reason to believe he is a person who has the sort of authority necessary to bind the corporation. That is one reason why contracts usually have a space for the person's job title as well as their name.
Say the person signs a contract "John Hancock, President & CEO". I hand over some benefit to "John Hancock" and later bill the company. The company can say one of two things:
- This really is John Hancock, CEO, but he needed board approval (or whatever) for this contract. He didn't get it. We ain't paying. (I.e., he had ostensible authority but did not get internal compliance)
- Who the fuck is John Hancock? (or, John Hancock - the janitor?) We ain't paying. (I.e., he had no authority to sign).
The first situation we all would agree I think is covered by the indoor management rule. The guy has ostensible authority (in that he did not misrepresent who he was) - he just didn't jump through the right hoops within the company. The contract is enforcable because it's not reasonable to expect the other party to know whether the correct hoops had been jumped through (and the company now has words to say to Mr. Hancock).
The second situation is trickier. Presumably Hancock is some sort of fraudster. Obviously if you can catch hold of Mr. Hancock and he's solvent, he's on the hook (either directly or third-partied by the company). Assuming you can't, the issue will then (I think) turn on what sort of dilligence the non-frauding party took in determining who Mr. Hancock was. If they were reasonably diligent and got fooled anyway, the company pays; if not, they eat the loss.
Thing is, in neither of these situations would Mr. Hancock
swearing up and down he had real authority in the contract itself make much of a difference. Sure, it indicates the parties thought about the issue, but would that be significant evidence to convince a court that sufficient diligence was done so as to allow the non-defrauding party to enforce the contract against the company? Would it add anything to the claim against Mr. Hancock, if he was a fraud artist? You would expect a fraudster to lie about being a fraudster; why would a fraudster saying he's not a fraudster make any difference one way or another?
I honestly don't know; I never encountered this particular problem in reality. My instincts are that it is the difference between saying you have done due dilligence, and actually doing due dilligence; the former isn't much of a help.
The thing you are missing Malthus is that sometimes in cases where the issue of ostensible authority comes up, one of the lines of defence can be "I never told them I had any authority they just wrongly assumed it. Had I turned my mind to it or had I been asked I would have told them I didnt really have the authority and really they should get someone else to sign". In other words, there can be a real issue on the facts. One simple line of drafting can take away what can be a lengthy issue on the facts.
Quote from: crazy canuck on December 16, 2009, 01:35:29 PM
Quote from: Martinus on December 16, 2009, 10:55:19 AM
If such extra wording is necessary under US common law, then I guess the law is pretty primitive and formulaic.
Marti, you are the guy who apparently lives in a jurisdiction that allows people to avoid contractual liablity by simply claiming the person who signed the contract didnt have the authority to do so.
I never said so. A person who purports to have an authority to sign a contract but doesn't is personally liable for any damage caused to the other party (and can also be criminally charged if this was deliberate). This liability however does not hinge on the fact that the person would say "Btw, I'm really me" (only in more words), however. ;)
Quote from: Martinus on December 16, 2009, 03:45:49 PM
I never said so. A person who purports to have an authority to sign a contract but doesn't is personally liable for any damage caused to the other party (and can also be criminally charged if this was deliberate). This liability however does not hinge on the fact that the person would say "Btw, I'm really me" (only in more words), however. ;)
QuoteBut if it hasn't, then such representations (which are made on behalf of the company, and not the signatory) are worthless, since it also means the signatory is not authorised to make representations that he is authorised to sign the agreement.
Thats funny. In English, saying a document is worthless because it is signed by someone who it is later claimed doesnt have authority actually means you are saying it is worthless.
I said the representation is worthless as it doesn't add anything to the picture - the liability is the same whether you put it in or not. Adding it in does not create any form of liability for the company being represented; and failing to add it does not remove any liability for the signatoree.
So it is worthless.
Quote from: Martinus on December 16, 2009, 03:55:22 PM
So it is worthless.
I could have sworn I read you said you didnt say that.
Quote from: crazy canuck on December 16, 2009, 03:37:40 PM
The thing you are missing Malthus is that sometimes in cases where the issue of ostensible authority comes up, one of the lines of defence can be "I never told them I had any authority they just wrongly assumed it. Had I turned my mind to it or had I been asked I would have told them I didnt really have the authority and really they should get someone else to sign". In other words, there can be a real issue on the facts. One simple line of drafting can take away what can be a lengthy issue on the facts.
That makes no sense though. On what planet does someone sign a contract knowing they have no authority to do so, and later say with a straight face "well, if only they
asked me, I'd have told them I was just some random guy who had no authority"?
In signing something you are holding yourself out as someone with the authority to sign it - assuming you are not mentally challenged. Whether that is good enough for the other person to rely on is of course a question for the facts, but I don't see that saying "I am who I claim I am" in the contract is any different from, in fact, claiming you are who you claim you are.
I can see putting such a clause in - it costs naught but ink - but really, it isn't a major protection. Problem is, too many protections of limited worth of this sort (don't even start on the boilerplate IP language - five pages of "you agree that every invention you discover in the course of services is our property" in contracts for carpet cleaning, that sort of thing) tend to make for very long contracts, since the number of basically minor protections one
could draft is essentially endless.
Quote from: Malthus on December 16, 2009, 05:06:34 PM
That makes no sense though. On what planet does someone sign a contract knowing they have no authority to do so, and later say with a straight face "well, if only they asked me, I'd have told them I was just some random guy who had no authority"?
Glad you see it that way. I hope you are the judge the next time I have to argue ostensible authority since you have already decided that if someone has signed a contract then they must have turned their mind to the issue of whether they have the proper authority. Glad you will take judicial notice of those pesky facts. ;)
QuoteIn signing something you are holding yourself out as someone with the authority to sign it - assuming you are not mentally challenged. Whether that is good enough for the other person to rely on is of course a question for the facts, but I don't see that saying "I am who I claim I am" in the contract is any different from, in fact, claiming you are who you claim you are.
Yep, that is exactly the argument I would use if I was arguing ostensible authority. But all kidding aside you are oversimplifying a bit. You seem to be assuming that there is a bright line between those who have authority because they are part of management and those that do not. In fact in a lot of cases the line is not that bright and there can be a lot of ambiguity as to what level of manager can actually bind a business depending on what kind of contract is being entered into. Having the clause there makes things a lot easier because now there is an express provision and no one can claim they didnt intend to make such a representation impliedly.
As a litigator that gives me a more ammo to use in any cross examination and anything that helps my case is good.
Quote from: Malthus on December 16, 2009, 05:06:34 PM
Quote from: crazy canuck on December 16, 2009, 03:37:40 PM
The thing you are missing Malthus is that sometimes in cases where the issue of ostensible authority comes up, one of the lines of defence can be "I never told them I had any authority they just wrongly assumed it. Had I turned my mind to it or had I been asked I would have told them I didnt really have the authority and really they should get someone else to sign". In other words, there can be a real issue on the facts. One simple line of drafting can take away what can be a lengthy issue on the facts.
That makes no sense though. On what planet does someone sign a contract knowing they have no authority to do so, and later say with a straight face "well, if only they asked me, I'd have told them I was just some random guy who had no authority"?
Earth.
It is a planet with a species called "human beings" that are capable of saying all sorts of silly things when a straight face once they have been ushered into a courtroom and placed under oath.
Quote from: The Minsky Moment on December 16, 2009, 09:57:35 PM
Earth.
It is a planet with a species called "human beings" that are capable of saying all sorts of silly things when a straight face once they have been ushered into a courtroom and placed under oath.
Yeppers. It is the old "I really had to have someone come in and fix the AC system because my boss was yelling at me, and these people told me that, if I signed that "contract" thingy, they would have people there the next day. I didn't know it was a contract for a whole year's worth of maintenance."
Quote from: Rasputin on December 16, 2009, 01:51:05 PM
good luck with that
sometimes in representing a client its better to do what is 100% guaranteed to work rather than trying to prove a point or test the limits
As a practical matter, I'm mostly in agreement with that. This strikes me to be more of a maverick move on the part of this judge than anything else at this juncture. We'll have to wait for some precedent to be established before we can say otherwise with any certainty.