Contracts by Dickens!


What the Dickens?

Yesterday my principles and my pragmatism came face to face. Actually toe to toe as they eyed each other in my head deciding who was going to throw the first punch. The mental bout went the full 10 rounds and, in the end, in blue corner, Parker “the Principled” Pugalist won the day.

While all these cerebral fisticuffs seemed to last an eternity to me, they were but a hesitation noticed by the nice man from the auto-body repair shop. He was going through the contract that gave him permission to bill my insurance after my wife’s car had been rear-ended on Independence Day. He noted the damage, the estimate, my responsibility to take home personal effects, that he would be responsible for any further damage his workers might do accidentally but …

… and that is where time began to slow down, that simple word that usually precedes something contentious …

… but he would not be responsible for “acts of God.”

I had been reading ahead of him. My head had already filled the ringside seats, the referee had explained the rules, the boxers were glistening and transfixed on one another. And at the word “God” all I heard was “ding, ding, round 1, box!”

Thirty minutes later (in my head) and a breath and a heartbeat or two (in the auto-body shop) later I said (from the blue corner) “There are no ‘Acts of God.'”

He hesitated. He started to say something but no sound came. Then he stood up, we were both leaning over the counter reading the contract, and he said, inspiration flooding to him now, “A sinkhole. What if a sinkhole swallows the workshop?”

I won’t prolong the agony here. The point is, in this day and age, why do we still have anachronistic terms in our contracts? Why do they say things like “male gender terms are used throughout but apply to both male and female”, and why only two genders. Why do we insist on putting Mr before Mrs? I insist it goes the other way as my wife’s name is alphabetically before mine.

Whereas, heretofore and whereby sound like breeds of cattle. The party of the first part must be a weeklong rave. Don’t define the meaning of words other than the meaning they have “some shall mean all and all shall mean some” use the right word.  Oh, and, prohibere usura contactus in Latin, please.

Come on my attorney friends, let’s get with the 21st century and write language that reflects the modern world and do so in modern idiom and do it without resorting to the deities. Yes you’re going to have to work harder but you have spell checkers, grammar checkers, word processors and cut-and-paste. Put down your quills and type.

About Kevin

In the past year Kevin has spoken at 20 conferences and seminars on a range of leading IT topics, including methodologies, business analysis, quality assurance techniques, governance, open source issues, tool interoperability, release management, DevOps, Agile, ITIL, from the mainframe to distributed platforms to the web, mobile, wearable and embedded systems. He is a much sought after speaker, recognized around the world for his provocative and entertaining style. Kevin is a 40 year industry veteran, holder of three technology patents and today is VP of Worldwide Marketing and Chief Evangelist at leading Application Development and Deployment vendor Serena Software. In the past decade he has been crossing the globe and has met with over 4,000 people. At Serena he works closely with industry analysts, the press, customers, partners and employees to exchange ideas about industry direction and business issues. He was born and educated in the UK and lives and works in the Bay Area, California.
This entry was posted in Business and Technology. Bookmark the permalink.

2 Responses to Contracts by Dickens!

  1. Kelly Shaw says:

    What phrase would you use instead? “Acts of Nature” could work, except it implies will. Did “Nature” intend to open that sinkhole? “Random freakish accidents” might be too vague for a legal document. If a worker in the shop suddenly had a seizure and cut a brake line, the shop could use the “freakish accident” defense to claim they aren’t responsible for fixing the brakes. Do you have a suggestion?

    • Kevin says:

      I’ve seen “force majeure” used but that’s French. “Unforeseeable circumstances” does cover it. “Unknowable instability in the local geology” fits this but not “lightening strike” which my auto-body friend also mentioned. This is truly work for the attorneys though.

      In the UK car crashes used to be called RTAs, road traffic accidents, now they are called RTCs, road traffic collisions, because there are no accidents. I believe the NTSB and the FAA both now favor incident over accident too.

      Newton’s laws, while relatively discredited, apply. Things stay put or they keep going until someone changes that. How heavy and how fast are directly proportional to how big the mess is. You push something, it pushes back.

      The weight of the workshop and the vehicles in it on top of the old Redwood Creek that was paved over in the 1880’s is a sinkhole waiting to happen. And it is someone’s fault. The original builder for not foreseeing this. The city geologist for not inspecting the creek regularly. The shop owner for overloading the shop with too many heavy cars. It’s action and reaction. It is not the capricious behavior of a deity.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s