B1 · Module 06 · Class 21 — What Should Have Happened

Narrative Scene 

  Monday Morning, Mexico City

Vocabulary

enforce — to compel compliance with a rule, contract, or obligation

waive — to formally choose not to enforce a right or requirement

estoppel — a legal principle preventing a party from contradicting a position they previously accepted

good faith — honest intention and effort to meet obligations, even when not strictly required

rectify — to put right; to correct an error or omission

omission — something that was left out or not done, especially when it should have been

preliminary — done before the main event; preparatory

rectification — the act of putting something right that was wrong or incomplete

privileged — (of a document) protected from disclosure in legal proceedings

waiver — a formal decision not to enforce a right or requirement

Form

Example

Meaning

should have + p.p.

The risk register should have been submitted before the presentation.

It was required — but it was not done.

should have + p.p.

Elena should have flagged Clause 7.3 at the proposal stage.

It was her responsibility — she did not act.

should not have + p.p.

The scope document should not have been signed without a legal review.

It was done — but it was wrong to do it.

Passive: should have been + p.p.

The preliminary report should have been circulated to all partners.

Expected action — not carried out.

Form

Example

Meaning

could have + p.p.

The missing register could have invalidated the entire Phase 2 submission.

It was possible — it did not happen (this time).

could have + p.p.

We could have requested the Senate minutes earlier — we chose not to.

The option existed — it was not taken.

could not have + p.p.

We could not have predicted the committee delay in October.

It was genuinely impossible — no blame implied.

Passive: could have been + p.p.

The clause could have been flagged during the initial contract review.

Missed opportunity — passive voice removes personal blame.

Form

Example

Meaning

might have + p.p.

Vantage might have noticed the missing register and chosen not to raise it.

Uncertain past — we do not know for sure.

might have + p.p.

The committee might have decided differently had the register been on file.

Speculative past result — unknown outcome.

might not have + p.p.

The approval might not have been conditional if the paperwork had been complete.

Speculative: different past action, different past result.

Modal

Core meaning

Tone

should have

Obligation or expectation not met

Critical, regretful, or evaluative

could have

Possibility that was not taken (or was avoided)

Neutral to mildly regretful; also relief

might have

Speculation about what possibly occurred or would have occurred

Cautious; non-committal; low certainty

Phrasal Verbs

flag up — to draw attention to a problem or risk formally:  "Elena should have flagged up Clause 7.3 at the proposal stage."

sign off on — to give formal written approval to a document:  "The scope should not have been signed off on without a legal review."

fall through — to fail to happen, especially a deal or agreement:  "The contract could have fallen through if Vantage had enforced Clause 7.3."

INTERNAL MEMO — PRIVILEGED AND CONFIDENTIAL

TO: Elena Vargas (Managing Partner)  |  Legal Affairs, Altius Consulting Group

FROM: Santiago Reyes, Senior Account Director

RE: Phase 3 Scope Agreement — Clause 7.3 Review

DATE: [Monday]

─────────────────────────────────────────────────────

I am writing to flag a contractual matter that requires immediate attention before

we submit the Phase 3 scope adjustment to Vantage Capital.

Clause 7.3 of the original engagement agreement states that Altius should have

submitted a preliminary risk register no later than ten working days prior to the

Phase 2 presentation. That document was not prepared or submitted.

This omission should have been identified during the Phase 2 preparation process.

It could have been caught at the initial contract review in November, or at the

latest when the Phase 2 presentation timeline was confirmed. It was not.

The risk, as I assess it, is limited but real. Vantage might have noted the

omission and chosen, in good faith, not to enforce it at the time. Alternatively,

they might not have reviewed Clause 7.3 in detail before issuing conditional

approval. Either way, we should not assume the matter is closed.

I recommend three steps:

1. The risk register should be completed and submitted this week as a good-faith

   rectification of the omission — not presented as the preliminary document, but

   as the definitive Phase 3 register.

2. Legal should review whether the conditional approval effectively waives Clause 7.3,

   or whether Vantage could still rely on it at a later phase-gate.

3. This situation should not have arisen. A contract review checklist should be

   implemented before any future engagement agreement is signed.

I am available to discuss at your earliest convenience.

S. Reyes