Fair enough, monkey-brain

TV stars, pop idols, lottery winners, chav champions, new money, old money, Cambridge graduates, sons and daughters of wise investments in the '60s. Ski-skinned smoothies, pink pashmina wearers, Gucci bag owners, Louis Vuitton fans, domiciles of Chelsea and drivers of loud sports cars that roar between the King's Road and Notting Hill. These are a few of my least favourite things.

Life is unfair, but that doesn't stop us being outraged when we are treated with unfairness.  A response to unfairness may be to:

1. reject the source of unfairness,
2. take an artificial moral highground, or
3. physically remove the afronting situation. 

Accordingly, it is Corporate Blawg's financial mediocrity that enables him to group "low life" with "high life" by their emphasis on irrelevant status symbols and displays of baboon-like competitive behaviour.

But not all monkeys are the same.

(Corporate Blawg is fascinated by monkeys.  He knows he descended from apes, because he is hairy and prefers to get his point across by grunting rather than speaking in sentances.)

An uplifting article in the National Geographic of 17 September 2003 highlights how Sarah Brosnan undertook a study on brown capuchin monkeys (Cebus apella) to find they have a deep understanding of fairness. The experiment was like this: two monkeys were paired up. Pairs were placed next to each other and trained to give human researchers a small granite rock in order to receive a reward.  The standard reward was a piece of cucumber, but sometimes grapes were given out to certain monkeys instead! Other monkeys who witnessed such unfair treatment (and failed to benefit from it):

1. refused future exchanges with human researchers, or
2. rejected cucumbers received for their work, or
3. sometimes even threw their cucumber rewards at the researchers.

Big respect to the capuchin monkeys!

Even though this may not demonstrate altruism, it does represent recognition of the principle of fairness. There is clearly an evolutionary background to our outrage in our perception of unfairness.

Professor Ernst Fehr is the academic leader in the principles of fairness who (surprisingly has not yet written a book called "Fehr on Fairness") has written a host of interesting papers on how people react with their bargaining position in different situations:

"The self-interest model has been very successful in explaining individual behavior on competitive markets, but it is unambiguously refuted in many situations in which individuals interact strategically. The experimental evidence on, e.g., ultimatum games, dictator games, gift exchange games, and public good games, demonstrates unambiguously that many people are not only maximizing their own material payoffs, but that they are also concerned about social comparisons, fairness, and the desire to reciprocate." Theories of Fairness and Reciprocity – Evidence and Economic Applications", Ernst Fehr and Klaus Schmidt (February 2001).

So this is solid evidence that playing hard-ball in negotiations (with the wife) will rarely likely to achieve the best result. 

In review of the least favourite things of Corporate Blawg, Corporate Blawg now considers that his situation is anything but unfair and he should be less critical.  Even though Corporate Blawg was not born with a yacht and a WC1 post code, he does have a beautiful wife, a job he enjoys, and a dinner of toad-in-the-hole to be shared with some friends.  Accordingly, he has maximised his payoff with regard to social comparisons, fairness, and the desire to reciprocate.  And in this regard, even pink-pashminas and ski-tans have their rightful place in the world (on the other side of town).

Concluding this ramble, Corporate Blawg drags you towards Corporate Blueg, and a legal issue brought to him through a really good blog written by a commercial law PSL, which he now can't find on Google...

The Office of Fair Trading has published a 200 page consultation document in relation to their revised guidance for the Unfair Terms in Consumer Contracts Regulations 1999. The purpose of this tome is to ensure that the format and, broadly speaking, content of the guidance is "relevant, clear and comprehensive". The OFT state that they are not consulting on the law, but on how clearly they have presented their interpretation and enforcement of the Regulations.

The right side of Corporate Blueg is minded to reply to the OFT that their document is very neat and tidy, well done, gold star. The left side of Corporate Blueg is minded to point out that clear interpretation of the law is the law.  Nevertheless, for want of leaving an online footprint, Corporate Blueg is shtum... but must note that this consultation procedure seems like rite of passage more than having any real value, and will probably not affect the finalised guidance that will be published in August later this year.

So enough Gov-bashing, what does the draft guidance say?

In standard terms to consumer contracts, the key is whether the terms are fair. The OFT's starting point in assessing the fairness of the term is to ask what would be the position for the consumer if it did not appear in the contract, so transparency is central top fairness. The Regulation 5(1) states that a standard term is unfair:

"if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

Apparently the principal of good faith embodies a general "principle of fair and open dealing". In assessing fairness the OFT notes how a term will be open to challenge if it is so wide that if it could be used to the consumers detriment. It may be considered unfair if it could have an unfair effect, even if it is not at present being used unfairly in practice and there is no current intention to use it unfairly.  this does seem rather harsh, but the OFT are clearly trying to maximise their payoff.

An example on page 104 of the rather lengthy annex, is that a clause stating: "on completion of the work the client hereby agrees to pay the balance to the site foreman"… should be changed to…"on satisfactory completion of the work the client hereby agrees to pay the balance to the site foreman".

Well done OFT - inspired, and VFM (either Value For Money, or Very F**king Mediocre, take your pick).

Despite one or two oddities, the guidance does actually serve quite a useful tool for establishing what is a fair standard term in a consumer contract. Corporate Blawg would not be surprised to see precedents written using 100% terms from the guidance, even though the OFT's disclaimer removes any legal reliance on the terms in the guidance.

Whatever Corporate Blawg may have said about fairness above, he's not Scandinavian nor Dutch, so will never have a good reason to be fair.  HA Ha ha.

Comments

[Nearly Legal]

*Doffs cap*

Great post, squire.

The left side of Corporate Blueg is minded to point out that clear interpretation of the law is the law.

No, it isn't. They don't want to know if you think the law is good or bad. They want to know if you think they've got their description of the law as it stands right.

[Marcin Tustin]

The left side of Corporate Blueg is minded to point out that clear interpretation of the law is the law.

No, it isn't. They don't want to know if you think the law is good or bad. They want to know if you think they've got their description of the law as it stands right.

This comment is brought to you by extreme pedantry.

[Marcin Tustin]

Apparently, if I don't fill in any details, I can leave a comment anonymously without being required to pass a captcha. Just a tip for the spammers out there.

[Liadnan]

In the meantime, of course, the Law Commission have a new draft bill unifying the two unfair terms regimes, which the govt has promised them they will bring forward. So is 200 pages of guidance on the 1999 regulations not something of a waste of time?
http://www.lawcom.gov.uk/unfair_terms.htm

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