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2020-07-03 |
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Paraphrased from Slack discussion between Andreas, Meng and Inari. If I (Inari) misinterpreted or omitted your argument, do correct.
Some judges believe in looking for the spirit and intent of the contract. Other judges believe in working only off what is in the text before them.
Why don't we add a clause like "This text should be interpreted in the spirit of the contract, not just according to the literal meaning"?
- Opponent can play the game too. "I understood that the spirit of our agreement was that we would subscribe to strict textualism."
- Monkey's paw scenarios. "Oh, but I though you wanted this to happen? This completely unintended thing will lead to it."
Severability clause “refer[s] to a contractual provision stating that if any clause(s) are found invalid, the invalid clauses should be severed and the remainder of the agreement enforced.)
Effectively, severability clause modifies the contract at runtime. It's an exception handler, not crashing the whole program/contract, just removing the offending parts and the rest is still good to go.
However, courts may decide to cut off "obnoxious features" even without a severability clause (source):
See, e.g., Booker v. Robert Half Int'l, Inc., 315 F.Supp.2d 94, 106 (D.D.C. 2004)
"Even without a severability clause, if the obnoxious feature of a contract can be eliminated, without impairing its symmetry as a whole, the courts will be inclined to adopt this view as the one most likely to express the intention of the parties."
So all this is connected to the question about letter vs. spirit of the law.
I wanted to just transcribe the discussion and the links to zettelkasten. TODO find an actual point and maybe split into several zettels.