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Comment by athenot | Hacker News Reader

I think this could be solved by outlawing severability (where if one clause of the contract is junk, the rest still stands). That would make the contract written in a much more careful manner, and make those junk clauses a liability for the entire contract.

Not a lawyer though, so happy to hear the flaws in this.

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Obvious flaw:

I write a contract with you: you will deliver me a "widget" in 6 months, at which point I deliver you $300,000. This contract is negotiated in good faith - we both at the time believe it is a good deal (this is important, as lack of good faith is a different issue). It turns out that after 6 months I don't need the widget like I thought I did, and fortunately for me there is a clause that I now discover is illegal. Now you have a widget neither of us want, and are don't have money to show for your last 6 months making it.

That's the point: to make you view each clause as a liability rather than something to stuff in there just in case it turns out to be useful.

In this example, though, the "liability" works out in the company's favor, since they can unilaterally terminate the contract if they realize a clause is unenforceable. It makes it even more important for the party with less negotiating power to thorougly understand the contract's legality.

You price risk into the contract or buy insurance.

There is no law preventing parties from negotiating in good faith either. If circumstances change, people usually adapt.

What if you make an honest mistake in the wording? What if the contract is complicated and you end up having part of it invalidated in court? What if the law changes, making part of your contract unenforceable?

There are so many good reasons to not outlaw severability, whereas outlawing it is a poor solution to one specific problem.

Put a hard limit on clauses that may be severed without invalidating the entire contract. Two, perhaps. Three strikes, and you're out.

>What if the contract is complicated and you end up having part of it invalidated in court?

Sounds like a feature, not a bug. Contracts have to be simple. If you can't do the transaction with a simple contract, you have to find a different method to carry out what ever is desired to be done.

I'm sorry, but this is a ridiculous statement. This isn't just about labor contracts. Contracts between businesses need to cover lots of different eventualities and edge cases. They need to acknowledge and adhere to a variety of laws, depending on the jurisdictions involved. Disclosures must be made. Eventualities must be planned for. Nobody (for the most part) wants to go to court to resolve something that could have been headed off in a contract.

Whether it's in the contract or not, you have to go to court to enforce it. There's no other authority.

Perhaps contracts between businesses and individuals, or even just businesses and consumers, should follow different, simpler rules than contracts between businesses - especially mega-businesses?

Let businesses with hundreds of staff attorneys do whatever they want to each other. But keep them from beating up a guy who just wants to collect a paycheck or buy a simple service.

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