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Message: <blockquote data-quote="pemerton" data-source="post: 5812983" data-attributes="member: 42582">Whereas in Australia unconscientious dealing is very commonly pleaded - far more than undue influence, for example. And the sorts of situations, like spousal guarantees, that the English courts try and deal with via undue influence - O'Brian, Eteridge and the like - in Australia are normally dealt with either via unconscientious dealing or via a further equitable docrtine that I think is unique to us (the English courts don't accept it), known as the rule in Yerkey v Jones or the "special wive's equity".We have penalty costs for failed pleadings of fraud, but I'm pretty confident that they don't apply to unconscientious dealing (I have never practised, and don't know the rules of procedure very well, but the ubiquity of unconscientious dealing as a pleading makes me think that penalty costs don't apply).That was my thought too - isn't is functionally analogous to a choice-of-law clause, with the parties to the contract agreeing on the rules of construction that are to govern it.Whether that's permissible in any given jurisdiction is another matter, but I don't see it as inherently absurd.Australian law, and English law also (given the Australian law was derived from it) has similar elements - default provisions that are read in by a statute, but can be excluded by the will of the parties.But the contra proferentum rule is a bit different, because it is a common law (ie judge-made) rule of construction, not a default provision of the contract. But an attempt to exclude it is quite different from (futilely) trying to exclude a provision that some statutory rule makes mandatory (like, say, the duty to depost the bond from a residential renter into a special account). It's an attempt by the parties to specify the law by which the contract will be interpreted.Whereas this stuff strikes me as strange. The question of WotC's loss on any given occaion of breach seems to me a matter of fact, and the suitability of particular remedies a matter for the court. But I'm not really a contract lawyer, and certainly not a US one - maybe this stuff is seen as somewhat analogous to a liquidated damages clause.</blockquote>

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