Timeline for Why is this contract worded like a client is talking to himself?
Current License: CC BY-SA 4.0
14 events
| when toggle format | what | by | license | comment | |
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| Aug 13, 2020 at 10:50 | comment | added | Iñaki Viggers | Let's continue this discussion in chat | |
| Aug 13, 2020 at 10:43 | comment | added | Iñaki Viggers | @JBentley "The purpose is to limit the indemnification to only items that the client has asked to be included in the design". And what I have been explaining to you is that the covenant of fair dealing renders "at client's request" redundant (at best). "It is not "noise" if you find a way to phrase it unambiguously". An unclear phrase constitutes noise for as long as it is ambiguous. It is analogous to removing dirt from an object: The object henceforth will be clean, but the dirt will remain dirt even if you found a way to make the object clean. | |
| Aug 13, 2020 at 8:49 | comment | added | JBentley | As for "Please be clear from the start so I don't have to cite sources you "didn't mean" - I was clear when I referred to "your final sentence". If you review your final sentence you will see it includes the part about forfeiting recovery entitlement. As for your latest response, firstly it is the client and not the contractor who would be incorporating materials, and he is not doing so without the contractor's knowledge. It is done "at the client's request"" (request meaning the contactor will be informed) - the famous phrase that you want removed from the clause. | |
| Aug 13, 2020 at 8:43 | comment | added | JBentley | I think you still haven't grasped the intended purpose of "at client's request". The purpose is to limit the indemnification to only items that the client has asked to be included in the design. If you remove that phrase entirely you are not limiting the indemnification in that way. Hence you change the meaning completely. It is not "noise" if you find a way to phrase it unambiguously. I don't know how else to get across this point to you, so at this point I will bow out of the debate and let the downvotes speak for themselves. | |
| Aug 12, 2020 at 16:46 | comment | added | Iñaki Viggers | @JBentley "I'm asking for authority that it would forfeit the contractor's entitlement to recovery from the client [etc]". Please be clear from the start so I don't have to cite sources you "didn't mean". If the contractor unilaterally incorporates materials, it is reasonable to expect he will duly notify the client, be aware of the possibility that permissions might be denied, and follow up accordingly. A consequence of the covenant of fair dealing is that the contractor is not allowed to single-handedly corner or strangle the client apropos of the indemnification clause. | |
| Aug 12, 2020 at 16:40 | comment | added | Iñaki Viggers | @JBentley If some terms are too ambiguous to achieve X, then those terms are nothing but noise. Noise only obfuscates issues and makes it more difficult to ascertain intent X. Removal of that noise does not (and cannot) "change" the meaning of a clause. Quite the contrary, it will usually result in a more concise outline of the parties' rights and duties. | |
| Aug 12, 2020 at 14:55 | comment | added | JBentley | "being too ambiguous implies that the term at issue it is devoid of meaning, whence it makes no sense to assert that removing that language"entirely chang[es] the meaning" of a clause" - I really don't understand what you are getting at here. If a drafter has intended meaning X, but he drafted it too ambiguously to achieve X, then your proposal is to change the meaning to an unambiguous Y. The correct approach is to fix the original wording so that it achieves X without being ambiguous. | |
| Aug 12, 2020 at 14:53 | comment | added | JBentley | To be clear, I wasn't asking for authority that the concept of good faith exists. I'm asking for authority that it would forfeit the contractor's entitlement to recovery from the client merely on the basis that the contractor cannot know whether or not the client obtains permissions, in spite of a clause indemnifying the contractor against that very thing. If what you are saying were correct, most modern contracts would contain unenforceable indemnification clauses. | |
| Aug 12, 2020 at 14:07 | comment | added | Iñaki Viggers | @JBentley "I'd ask if you have any legal authorities to back it up". See Wilson v. 21st Century Ins. Co., 68 Cal.Rptr.3d 746,751 (2007) ("The law implies in every contract [...] a covenant of good faith and fair dealing", emphasis & brackets added). Implied by law means that it underlies the OP's contract even if he does not phrase it. And being too ambiguous implies that the term at issue it is devoid of meaning, whence it makes no sense to assert that removing that language"entirely chang[es] the meaning" of a clause. | |
| Aug 12, 2020 at 13:42 | comment | added | JBentley | Entirely changing the meaning of a clause is not a correct solution to resolving an ambiguity. As we both agree, it is unclear which act the phrase qualifies. The fairly obvious solution then is to make it clear. As for your final sentence, (a) that is not what this question is about, and (b) it is a rather bold assertion, given that such indemnification clauses are pretty standard. Therefore I'd ask if you have any legal authorities to back it up. | |
| Aug 12, 2020 at 13:17 | comment | added | Iñaki Viggers | @JBentley "This is an interpretation issue". That ambiguity is exactly why "at client's request" should be removed. It is unclear which act the phrase qualifies: to obtain permission, or to request materials for inclusion in the design. If anything, a scenario where the contractor uses materials despite his awareness of client's inability to obtain the requisite permission(s) therefor would contravene the contract law covenant of good faith and fair dealing, which would forfeit contractor's entitlement to recovery [from the client] regarding those specific materials. | |
| Aug 12, 2020 at 11:59 | comment | added | JBentley | "the burden of obtaining copyright permission(s) is on the client" - not correct (see above). The burden is on the client only for materials requested by them. We can presume (having not seen the rest of the contract) that for materials included on the contractor's initiative, the contractor will carry the burden. | |
| Aug 12, 2020 at 11:57 | comment | added | JBentley | -1, removing entirely "at client's request" would completely change the intended meaning of the clause, which is supposed to protect the contractor for materials which the client has asked to include. This is an interpretation issue - see Nate Elredge's comment on the question. The correct solution is to make it clearer what is being modified by "at client's request" (i.e. it is the materials included and not the permissions obtained). | |
| Aug 11, 2020 at 22:11 | history | answered | Iñaki Viggers | CC BY-SA 4.0 |