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Fairness and intentions.

Fairness and intentions.

Postby Hairyloon » Wed Aug 09, 2017 12:43 am

A judge must consider the law and the word of the contract, but to what extent must he consider fairness and the original intentions of the agreement?
I would hold that they are both paramount and the judge should seek the fairest interpretation within the law of the intention expressed in the words of the contract.
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Re: Fairness and intentions.

Postby dls » Wed Aug 09, 2017 5:37 am

The interpretation of a contract is a huge subject.

Different contracts have different rules. You cannot safely generalise.
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Re: Fairness and intentions.

Postby atticus » Wed Aug 09, 2017 9:36 am

Concepts of fairness only come into play in certain aspects of consumer contracts.
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Re: Fairness and intentions.

Postby Hairyloon » Thu Aug 10, 2017 11:42 am

Curious attitude. Most people hope for fairness through most aspects of their daily lives.

But we are here discussing an agreement between two parties. It is common ground that the agreement was designed to be fair to both parties.
Unfortunately, unforeseen circumstances have allowed an interpretation which makes the agreement potentially unfair.
There is ambiguity over whether that potential can be triggered or not: the law is not clear.

The sensible course, if it was put before a judge, would be to seek a course that is fair to all parties: what power or obligation does he have to do that?
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Re: Fairness and intentions.

Postby atticus » Thu Aug 10, 2017 11:43 am

This is legal discussion, of how courts interpret contracts. My answer is to be read in that context.
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Re: Fairness and intentions.

Postby atticus » Thu Aug 10, 2017 11:56 am

I agree to sell you a bucket load of stuff for £1,000. Delivery next Saturday.

£1,000 is today's market price for a bucket of stuff delivered next week, we both think we have a fair deal.

Tomorrow the market is unexpectedly flooded with stuff. The market price for a bucket falls to £100. I am entitled to hold you to our deal, even though you think it is not now a fair deal.

The point is that the judge will apply the terms of the contract. He will not rewrite it (certain aspects of consumer contracts excepted).
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Re: Fairness and intentions.

Postby Hairyloon » Thu Aug 10, 2017 12:08 pm

atticus wrote:I agree to sell you a bucket load of stuff for £1,000. Delivery next Saturday.

£1,000 is today's market price for a bucket of stuff delivered next week, we both think we have a fair deal.

Tomorrow the market is unexpectedly flooded with stuff. The market price for a bucket falls to £100. I am entitled to hold you to our deal, even though you think it is not now a fair deal.

Clear and understood, but imagine the agreement is conditional on whether or not the cat is dead (cf other post)... and further there is a question of whether the agreement is valid or not.
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Re: Fairness and intentions.

Postby shootist » Thu Aug 10, 2017 3:18 pm

Remember the famous quote. "This is a court of law, not a court of justice." The law in action is, I suspect, mostly fair, at least in this country. Of course, fair can sometimes mean that everybody gets shafted.
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