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> "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". Severability (the ability to "sever" part of a contract, leaving t

> "if any piece of this contract is invalid it doesn't invalidate the rest of the contract". Severability (the ability to "sever" part of a contract, leaving the remainder intact so long as it's not fundamentally a change to the contract's terms) comes from constitutional law and was intended to prevent wholesale overturning of previous precedent with each new case. It protects both parties from squirreling out of an entire legal obligation on a technicality, or writing poison pills into a contract you know won't stand up to legal scrutiny. If part of the contract is invalidated, they can't leverage it. If that part being invalidated changes the contract fundamentally, the entire contract is voided. What more do you want? It seems like you're arguing for some sort of punitive response to authoring a bad contract? That seems like a pretty awful idea re: chilling effect on all legal/business relationship formation, and wouldn't that likely impact the weaker parties worse as they have less access to high-powered legal authors? That means that even negotiating wording changes to a contract becomes a liability nightmare for the negotiators, doesn't that make the potential liability burden even more lopsided against small actors sitting across the table from entire legal teams? I guess I'm having trouble seeing how the world you're imagining wouldn't end up introducing bigger risk for weaker parties than the world we're already in.

cj 3y ago
Practical example: your employment agreement has a non-compete clause. If 3 years later non-competes are no longer allowed in employment contracts, you won’t want to be suddenly unemployed because your employment contract is no longer valid. You’ll want the originally negotiated contract, minus the clause that can’t be enforced.
jbombadil 3y ago
Thanks for the explanation and the term "severability". I understand its point now and it makes sense to have it conceptually. I also didn't know about this part: > so long as it's not fundamentally a change to the contract's terms However, taken down one notch from theoretical to more practical: > It seems like you're arguing for some sort of punitive response to authoring a bad contract? Not quite so bluntly, but yes. There's obviously a gray area here. So not for mistakes, subtle technicalities. But if one party is being intentionally or absurdly overreaching then yes, I believe there should be some proportional punishment. Particularly if the writing party's intent is to scare out of inaction more than a core belief that their wording is true. The way I think of it is maybe in similar terms as disbarring or something like that. So not something that would be a day-to-day concern for honest people doing honest work, but some potential negative consequences if "you're taking it too far" (of course this last bit is completely handwavy). Maybe such a mechanism exists that I'm not aware of.
- nostrademons 3y ago
  I'm reminded of the concept of a "tact filter", which is basically "do you alter what you say to avoid causing offense, or do you alter what you hear to avoid taking offense?" https://www.mit.edu/~jcb/tact.html https://www.mit.edu/~jcb/tact.html The part the original essay leaves out is that optimal behavior depends on the scale and persistence of the relationship. In personal, 1:1, long-term relationships, you should apply outgoing tact filters because if you cause offense you've torched the relationship permanently and will suffer long-term consequences from it. But in public discourse, many-to-many, transactional relationships, it's better to apply incoming tact filters because there are so many people you interact with that invariably there will be someone who forgot to set their outgoing tact filter. (And in public discourse where you have longstanding relationships with your customers with serious negative consequences for pissing them off, you want to be very, very careful what you say. The entire field of PR is devoted to this.) So anyone who spends a significant amount of time with the general public basically needs to develop a translation layer. "i hope you hang yourself" on an Internet forum becomes "somebody had a bad day and is letting off steam by trolling." "Your business is probably in violation of federal labor laws because you haven't displayed these $400 posters we're trying to sell you" becomes "Better download some PDFs off the Department of Labor for free" [1]. "We're calling from XYZ Collection Agency about your debt" or "This is the Deputy Sheriffs office. You have a warrant out for your arrest for failing to appear for jury duty" or "This is the IRS calling requesting you pay back taxes in the amount of $X over the phone" = ignore them and hang up because it's a scam. "Continued involvement in Russia's internal affairs will lead to nuclear consequences" = Putin is feeling insecure with his base and needs to rattle some sabers to maintain support. "You are in violation of several state and federal laws facing up to 20 years in prison" = they want something from me, lawyer up and make sure we're not in violation and then let's negotiate. [1] https://www.dol.gov/general/topics/posters https://www.dol.gov/general/topics/posters
- gingerrr 3y ago
  I do like the idea theoretically as a deterrent against bad actors abusing the law to bully weaker parties - but the difficult part is in the details of implementation: how do you separate intent to abuse from incompetence? Also confusing the mix here is who you are punishing when violations are found - is it the attorneys drafting the agreement? They're as likely to be unaffiliated with the company executing the contract as not, not everyone bothers with in-house counsel. Is it the company leadership forwarding the contract? What's the scope of the punishment? An embargo on all new legal agreements for a period of time, or only with the parties to the bad contract? A requirement for change in legal representation? Now we get into overreach questions on the punishment side. All of that to say I am guessing the reason something like this doesn't exist yet afaik is because it's a logistical nightmare to actually put into practice. The closest I can think of to something that might work is like a credit score/rating for companies for "contract integrity" or something that goes down with negative rulings - but what 3rd party would own that? Even just the thought experiment spawns too many subqueries to resolve simply. None of that contradicts the fact it's a good idea - just not sure if even possible to bring to life!

cj 3y ago

Practical example: your employment agreement has a non-compete clause. If 3 years later non-competes are no longer allowed in employment contracts, you won’t want to be suddenly unemployed because your employment contract is no longer valid. You’ll want the originally negotiated contract, minus the clause that can’t be enforced.

jbombadil 3y ago

Thanks for the explanation and the term "severability". I understand its point now and it makes sense to have it conceptually. I also didn't know about this part: > so long as it's not fundamentally a change to the contract's terms However, taken down one notch from theoretical to more practical: > It seems like you're arguing for some sort of punitive response to authoring a bad contract? Not quite so bluntly, but yes. There's obviously a gray area here. So not for mistakes, subtle technicalities. But if one party is being intentionally or absurdly overreaching then yes, I believe there should be some proportional punishment. Particularly if the writing party's intent is to scare out of inaction more than a core belief that their wording is true. The way I think of it is maybe in similar terms as disbarring or something like that. So not something that would be a day-to-day concern for honest people doing honest work, but some potential negative consequences if "you're taking it too far" (of course this last bit is completely handwavy). Maybe such a mechanism exists that I'm not aware of.

nostrademons 3y ago
I'm reminded of the concept of a "tact filter", which is basically "do you alter what you say to avoid causing offense, or do you alter what you hear to avoid taking offense?" https://www.mit.edu/~jcb/tact.html https://www.mit.edu/~jcb/tact.html The part the original essay leaves out is that optimal behavior depends on the scale and persistence of the relationship. In personal, 1:1, long-term relationships, you should apply outgoing tact filters because if you cause offense you've torched the relationship permanently and will suffer long-term consequences from it. But in public discourse, many-to-many, transactional relationships, it's better to apply incoming tact filters because there are so many people you interact with that invariably there will be someone who forgot to set their outgoing tact filter. (And in public discourse where you have longstanding relationships with your customers with serious negative consequences for pissing them off, you want to be very, very careful what you say. The entire field of PR is devoted to this.) So anyone who spends a significant amount of time with the general public basically needs to develop a translation layer. "i hope you hang yourself" on an Internet forum becomes "somebody had a bad day and is letting off steam by trolling." "Your business is probably in violation of federal labor laws because you haven't displayed these $400 posters we're trying to sell you" becomes "Better download some PDFs off the Department of Labor for free" [1]. "We're calling from XYZ Collection Agency about your debt" or "This is the Deputy Sheriffs office. You have a warrant out for your arrest for failing to appear for jury duty" or "This is the IRS calling requesting you pay back taxes in the amount of $X over the phone" = ignore them and hang up because it's a scam. "Continued involvement in Russia's internal affairs will lead to nuclear consequences" = Putin is feeling insecure with his base and needs to rattle some sabers to maintain support. "You are in violation of several state and federal laws facing up to 20 years in prison" = they want something from me, lawyer up and make sure we're not in violation and then let's negotiate. [1] https://www.dol.gov/general/topics/posters https://www.dol.gov/general/topics/posters
gingerrr 3y ago
I do like the idea theoretically as a deterrent against bad actors abusing the law to bully weaker parties - but the difficult part is in the details of implementation: how do you separate intent to abuse from incompetence? Also confusing the mix here is who you are punishing when violations are found - is it the attorneys drafting the agreement? They're as likely to be unaffiliated with the company executing the contract as not, not everyone bothers with in-house counsel. Is it the company leadership forwarding the contract? What's the scope of the punishment? An embargo on all new legal agreements for a period of time, or only with the parties to the bad contract? A requirement for change in legal representation? Now we get into overreach questions on the punishment side. All of that to say I am guessing the reason something like this doesn't exist yet afaik is because it's a logistical nightmare to actually put into practice. The closest I can think of to something that might work is like a credit score/rating for companies for "contract integrity" or something that goes down with negative rulings - but what 3rd party would own that? Even just the thought experiment spawns too many subqueries to resolve simply. None of that contradicts the fact it's a good idea - just not sure if even possible to bring to life!