Is &#39;reading down&#39; clause optional? Specifically with regard to a UK/England employment contract. I am used to seeing clauses in contracts which state crudely that if one clause is found unreasonable, that clause alone will be struck out and the remainder of the contract left to stand. From this question, I gather this is termed a 'reading down' clause. From comments, it can also be a Salvatorian Clause or Severability Clause. Is this form strictly necessary (i.e. one unreasonable clause in a contract has significant risk to invalidate the whole), or is it simply additional security in capturing something which would typically occur regardless?
I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid &amp; Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious.
Contracts are routinely held to be valid even when there is negligible or literally zero financial “gain” (compensation, which they take into consideration in order to enter into the contract). A document purporting to be a contract might be held invalid if it is a bare promise like “I promise to give you $100 on Friday”, but you can make it an enforceable contract by including “if you give me a french fry today”. Reasoning that party “could have” done something else does not invalidate a contract, for example the party might have had $3 at the time and could have purchased a whole bag of fries. The only imaginable relevance of “I could have” thinking would be if the terms of the contract are so unclear that the party would not reasonably have understood the contract to have obligated them to pay $100, or that they would have reasonably believed that they were to receive a suitcase full of french fries. There is a (huge) difference between subjective errors in interpreting a contract and objective uncertainty. Objective uncertainty is fundamentally about the linguistic structure of the agreement, i.e. words like “it” which have no intrinsic referent, or “required books and clothing” (which could mean “required books and all clothing”, or “required books and required clothing”). There may be special rules of legal interpretation addressing how such ambiguities are resolved (this one is not well established, but is known in some spheres as the “across-the-board rule”). Personal interpretation does not enter into decisions as to the validity of a contract: if you misinterpret the words of a contract, regardless of how strong your proof is that at the time you did not understand the contract, that doesn’t matter, unless you can show that at the time you were actually not competent (did not know Armenian and could not have understood what the contract required). The courts look at the words of the contract, assume that the parties have availed themselves of wise legal counsel, and understand how the courts would interpret the contract, then they filter the words of the contract through a sieve composed of rules constituting &quot;the law&quot;, and declare what parties A and B must do.
This aspect (and many others) of contract law is applicable in the US and various countries of the EU. can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? No. The company would incur breach of contract. There is no need for a formal contract. The candidate only needs to prove that the company agreed (in writing, orally or clearly through its conduct) to cover or reimburse those expenses and that this elicited a meeting of the minds. The agreement would be void if the candidate incurred the expenses despite knowing (via timely notice) that the company changed its mind. Likewise, if the candidate lied on his CV, the contract (here, the company's agreement to cover the expenses) would be voidable by the company, since the candidate's intentional misrepresentations preclude the aforementioned condition of meeting of the minds. --Edited on 1/18/2019 to add ...-- Per suggestion by @KRyan, the aspect of void or voidable contract is expanded. But first, two disclaimers are pertinent: We need to be mindful that many of the follow-up concerns are either premised on or inspired by the situation described in the underlying Workplace SE post. These are somewhat beyond the scope of this Law SE question but addressed nonetheless, given their relevance as well as the OP's &amp; audience's interest. The follow-up hypotheticals [in this Law SE question] and clarifications thereto neither speculate nor pass judgment on the stranded candidate who asked on Workplace SE. The Workplace SE post reflects a company's breach of contract. The subsequent comments here about fraud hypotheticals are mostly derivative inquiries beyond what is described in Workplace SE. In particular, we do not assume whatsoever that the stranded candidate committed fraud. The_Sympathizer commented: can the contract be voided on the spot like that without first proving in court? As it seems like it grants a rather &quot;vigilante&quot; justice power that is open to abuse, since effectively the &quot;punishment&quot; (cancellation of the flight and thus inducing a rather serious physical situation) is administered before any due process has been afforded the one accused. Yes, it can be voided on the spot (aka sua sponte). &quot;Vigilante&quot; justice denotes a self-attribution of punitive powers that exclusively belong to the state/government/court, whereas a party's voiding of a contract is the act of foreclosing his losses/exposures with respect to a contract that de facto never existed (such as when that contract was induced by fraud). I agree that unfortunately that is open to abuse: As a pretext to actually incur breach of contract, a company might allege that the contract was void. That is why (if taken to court) it will be the company's burden to prove that (1) it reasonably relied upon a candidate's representations (2) which were significant and blatantly false (3) given the candidate's knowledge that his lies contravened the job's core requirements. That can be quite burdensome. For instance, is the company handing out airfares without first conducting some competent corroborations about the candidate's credentials/skills? If so, one can hardly concede the company's allegation of reasonable reliance. The resulting finding would be that the contract was not voidable by the company, and thus that it is liable for breach of contract. Also, belatedly &quot;informing&quot; the stranded candidate that the company &quot;is going in a different direction&quot; falls short of evidencing that the contract was voidable. That applies even if the candidate performed very poorly in the interview or screening process. Given the hardship imposed on a stranded candidate, a company has to be morally and legally very judicious about its method and timing for &quot;going in a different direction&quot;. But absent any representations or [company's] bylaws to the contrary, a company generally does not have the obligation to afford due process to a candidate. The court is the entity with an obligation to enforce due process as provided by law (although many of us in the U.S. have repeatedly experienced the courts' disavowal of due process). --End of edit on 1/19/2019-- a binding agreement requires both sides to give something Here, the candidate's consideration is his time and effort to accommodate the company's interest in assessing the candidate's profile at a location that is convenient to the company.
That would likely be treated as a preamble. These have been held in some jurisdictions to not have any weight. For example, see Sherbrooke Community Centre v. Service Employees International Union, 2002 SKQB 101: The preamble to a contract is nothing more than an introduction to that about which the parties have actually agreed. It puts the agreement into context. It describes the goals of the agreement. It speaks to what went before and the spirit in which agreement was achieved. On the other hand, it does not contain any promises. It does not contain any restrictions or commitments. It could be removed entirely without in any way altering that which was agreed to and set out in specific terms. [...] this clause in the preamble does not create or eliminate rights or obligations Granted, the introductory phrase in your hypothetical clause is not literally a preamble, but it has the same characteristics cited in the above decision: &quot;it describes the goals&quot;, &quot;it does not contain any promises&quot;, &quot;it could be removed entirely without in any way altering that which was agreed to&quot;. If you wanted the clause to only take effect if toilets overflowed, use an alternative wording, like: Company B may not resell any products purchased from Company A at a discounted price in a manner that causes toilets to overflow.
It doesn't matter. When a contract is left ambiguous the interpretation that is used is the one that is the most favorable to the party that did not draft the contract, under the logic that if the party that did draft the contract chose all the wording and thus, they could have stated their interpretation in the contract just avoided this whole mess in the first place. A similar rule exists in criminal law, where if the law is ambiguous, the interpretation used is the one most favorable to the defendant, since the state could have drafted it in a way that made their interpretation clear.
Is this even legal? Yes, it is lawful. The Ontario Tenancy Act does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it. Also note that the clause refers to reasonable costs, which implies that those costs must be for a reasonable cause. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious. Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario.
You cannot In a conflict between written and oral terms of a contract, the written terms prevail. In any event, by you utterance you have not accepted the contract; you have made a counter-offer which the other party has not accepted and have then gone on to accept their original offer. You would need the written agreement of the other party that they accept your terms and that they understand that clicking the “I accept” is not an acceptance of their terms but merely a means of completing the technical procedure.
If a line in your will bequeaths something that you don't have the power to give (e.g. you bequeath something that you don't own at the time of your death), that line has no legal effect. If I died and left you the house at 10 Downing Street in London, for example, you wouldn't actually be getting it. If your will contains enough of those lines and/or they seem excessively unreasonable, it may cause the validity of the will to be challenged on the basis that you weren't competent to prepare and sign it. If the people reading it think it's reasonable, it may have a social effect based on what it conveys to them, which could lead to voluntary compliance with your wish (especially if the main obstacle to that being realized is a mistaken understanding of and desire to respect your wishes). That could help make peace, for example, if a surviving parent's remarriage would otherwise be opposed by children (or the surviving partner) or others based solely on a mistaken understanding of the wishes of the deceased. It could also make for a really awkward moment, depending on the views of and relationships between survivors. Addressing user662852's comment on the question: You can also use a will to name a guardian for anyone you have guardianship over, which is usually more important for children (e.g. see "Why Every Parent Needs a Will.").