In practice, separating the subjective/objective elements is harder than it seems at first glance (and often impossible). The ideal, "perfect" contract would reflect the parties' intent with complete accuracy and would be clearly and fully interpreted by a judge/jury the exact same way. In reality, Party A and Party B want to "get the deal done." In many of the larger tech contracts I handle, the actual persons negotiating (sometimes even dedicated "contracts managers") are many steps removed from the stakeholders. Sometimes, it's a whole separate onboarding company. But even if it's the CEOs in the room, and they know fairly clearly what they want to put in a Statement of Work, they usually don't often consider (or want to think about) all of the intracies of the thousand ways something might go wrong. And standardized MSAs often fall very short (and sometimes lead to absurd results or contradictions); they are far from one size fits all and can't really be standardized to a menu of options either. 99% of what I do is dealing with retained background IP, warranties, indemnification, and liability limits. What is ultimately agreed upon is not usually something that can be determined with algorithmic certainty, nor would it matter, because the both parties would have to agree to use the same algorithm. In reality, it depends upon the particular type, severity, and likelihood of the risk to each party, each party's risk aversion, relative bargaining power, and -- much more than one might expect -- the entrenched corporate culture. A lot of the "art" in negotiating is presenting something to the other side that they can "sell" to their own superiors to get the deal done. And, very, very frequently, there's something irrational about it. For example, someone might not budge on narrowing an indemnification clause, but might bend on a blanket liability limit that would weaken it to practically nothing. Also, sometimes you might let something slide, because given the current state of the law with regard to how such a clause might be interpreted, you'd feel confortable enough that it would be interpreted in your favor -- i.e., in your risk assesment, you're considering how human beings (judge/jury) would interpret it. I've heard arguments before about how humans built laws and also built bridges, therefore laws can be reduced to scientific/mathematical/computational constructs. But unlike bridges, laws are based on this concept of "jurisprudence" which involves a foundation not built on mathematics, but instead built on ethics, morality, and philosophy. They're the thread of society. To fully "computerize" law, you'd have to do the same to society and humanity itself.
avs733|4 years ago
Because, and this is where law just messes with my brain, the field deals as much in the NORMATIVE as it does in the objective and subjective. in my limited understanding...I'm left feeling like the normative is treated as objective by those in the field, but looks subjective to those outside of it.