On misfeasance, browsewrap and exhaustion or the fruits of summer school

 

[Exhausted man in office*]

For many non-retail businesses, August is a sleepy month, to put it mildly. In Israel, it even used to be called the “season of cucumbers”, the equivalent of the English "silly season",  due to its lack of relevant news. For me, this August is no different. Thus, I have directed some my spare time to reading the law digests I receive every week and don’t read. After all, continuing education is an essential task for any professional, legal translators included. Not being an attorney, I discovered some new terms, specifically misfeasance trading, browsewrap and horizontal and vertical exhaustion. I may or may not encounter them in the future but, in the meantime, it is fun to learn new terms.

In Wright vs Chappell, the court found the directors guilty of misfeasance trading as compared to wrongful trading. The former implies that directors breached their duties, including in regard to compensation, conflict of interest, due diligence and creditors. The former refers to actual trading when the directors know a company is not solvent. Clearly, both offenses refer to illegal acts, but the malfeasance is easier to prove.

Of a wider impact was the California Appeal Court decision regarding browsewrap, which refers to the “I agree” clicks on websites. The decision affirmed, among other arguments, that a clause stipulating arbitration was not enforceable if a “prudent user” would not have noticed it. This line of thought reminded me of the various “plain English” laws for consumer contracts that require key elements to be visually highlighted. To be clear, it did not say that these Internet agreements were non-valid but only that the site must present them properly.

I was quite fascinated by the discussion of horizontal and vertical exhaustion. These terms do not refer to the effects of training for the decathlon but instead to the conditions for applying for secondary insurance benefits. In many insurance policies, it is impossible to initiate a claim under a secondary insurance policy until the full payout, exhaustion, of all primary policies. That is horizontal exhaustion. By contrast, if an insured party has reached the limits of one of many primary policies, it may receive the benefits from a secondary policy under that same exhausted policy whether or not it has completely collected the benefits from the other primary policies, i.e., vertical exhaustion. Even if that sounds tiring to understand, the knowledge may be useful in the future.

For those busy in August or, even better, on vacation. I wish you happy days. For those waiting for the phone to ring physically or virtually, even if you know everybody else on too busy working or playing to need your services, August is a great time to gather “useless” knowledge. Nobody knows when you may need it, especially translators.

* Picture captions allow the blind to fully access the Internet.

Picture credit