Contracts and agreements, in its different forms, are the most common part of transaction in the business and the corporate world; and it is here where most problems begin or abate.
When a well-qualified and an experienced legal personnel, comes across any contract or agreement, they are instantly able to identify the drafting and interpretation faux pas, primarily by a general browsing of the document placed before them for their attention and service. A legal personnel is immediately able to gauge the effectiveness of the contract on their table. One can even decipher, as to who has drafted the said contract, whether a legal personnel, or a highly qualified professional in some other field, or whether it is merely an altered template.
The gaffe that most corporates indulge in , is drafting important documents with major consequence themselves, by allotting the task to any distinguished personnel within the organization , who may be an expert in some other field, only to cut down legal costs or some other reason known to them. This is like attracting the curse of self-medication in some cases as they call it as, in the world of medicine. This is especially seen in those companies who do not have an in-house legal counsel, and/or depend entirely on service to service based legal professionals or law offices, and brush away the need of seeking legal support.
Such drafts explicitly exhibits the following:
1. Good language
2. Lacks legal terminology where required, or too much of legalese when not required.
3. Reflects template style, sample draft available online or in their files.
4. Incoherent words, not aligned to the purpose of the agreement /contract.
5. Lacks reference to specific laws that need to be mentioned.
6. May not be elaborate, when required to be elaborate.
7. Unpolished clauses, open clauses that allows misinterpretation of manifold interpretation.
8. Purpose diluting phrases.
9. It shows that it is a revised draft used for some other purpose, between different parties, and a part of it is inadvertently left in this new agreement/contract.
10. May contain irrelevant facts
11. Clearly exhibits that it is cut-copy-paste, thereby ambiguous, where the intent again is diluted.
12. Improper organization of words/phrases/clauses
13. Unclear transition between logic , sentences and clauses
14. Overuse of passive verbs
15. At times boiler plate clauses missing, which is one of the major faux paus.
16. International contracts between two companies in different countries, devoid of indispensable clauses, in consonance with the laws of each country in which the party/parties are incorporated/ have a branch, depending on facts and circumstances in each case.
17. Faulty risk allocation clauses.
18. Either too long or too short.
19. Improper usage of legal jargons.
20. Displays lack of prudence in arrangement of clauses.
These are some of the things that come to the fore apart from others.
Cut-copy –paste of drafts is the worst of it all, where some generalize the use of some drafts to all contracts and agreements, and when such drafts come up before a legal personnel, he/she ends up scratching his/her face, and begins his/her elementary surgical punctuation to understand the core content. When such drafts come before the courts, as evidentiary records, the judges depend upon the case well presented by either of the lawyers and passes a verdict in their best discernment and discretion.
Some companies are confident with such drafts until problems knock their door, and such a confidence is only pitied at.
Such a contract or an agreement which gives wide scope for misinterpretation, with plenty of loopholes and lands the company in trouble. It is in the loopholes that any case reels to survive, and overthrow.
It seems palpably clear that, cost cutting is a major reason for some companies to adopt such a practice. However in the pursuit of cutting those costs, they end up in major suits with millions of amount at stake, at times their goodwill and business itself at stake. It is then, such contracts and agreements pile at the desk of a legal professional.
Further, when you present a squabbled bouillabaisse, which is a result of incautious, tactless corporate decision, to your lawyer; you then need to realize , your lawyer is not a supernatural savior but only a human and an expert in his/her field who can only exercise judicious expertise and in his/her best ability iron out the creases and may be able to distinctively achieve that which is required and /or possibly achieve /derive at , under the facts and circumstances of each case.
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©Henrietta Newton Martin 2017
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From Henrietta Newton Martin's Legal Desk 