Two contracts?

Subject: Two contracts?
From: Geoff Hart <ghart -at- videotron -dot- ca>
To: techwr-l -at- lists -dot- techwr-l -dot- com
Date: Tue, 20 Dec 2005 13:45:52 -0500

Anonymous Poster wondered: <<I am now in the process of trying to get a contract signed with a large company... After many
e-mail discussions regarding minor changes to "my" contract, today I was presented with "their" boilerplate consulting contract. This contract has several clauses that conflict directly with the text of my contract, These clauses are clearly not in my best interest (like giving up the right to trial by jury in a dispute).>>

When in doubt, strike 'em out! <g> All contracts are negotiable, at least to a point, and many boilerplate conditions are negotiable--the authors just hope that you don't know that. If they insist on terms that you find unacceptable and you can afford to risk losing the job, tell them to find another contractor. You can get badly burned by clauses that rob you of your rights.

<<My contact says her company always signs the consultants contract and has the consultant sign theirs. Is the process of signing "two" contracts common? (I've never done it.)>>

I have indeed signed two contracts--or more specifically, had my base contract included as an annex to the main contract. But I never allow contradictions between the contract terms to stand. The only people who benefit from legal contradictions are the lawyers, who earn a much higher hourly rate than we do and who positively love debated a fine legal point for hours while the meter is running.

<<If I sign them, which contract takes precedence--perhaps the one signed first, or last??>>

Depends on whose lawyer is most persuasive when it comes time for the trial. <g> In theory, the contract with the latest date takes precedence since it is assumed to replace certain clauses in the earlier contract, but you'd be unwise to assume that this is correct--particularly since most of us here on techwr-l aren't lawyers, and since the interpretation probably differs among jurisdictions.

<<I wish I could afford a lawyer to review their contract, but right now I cannot.>>

Can you afford an expensive lawsuit later if it comes to that? If not, hire a lawyer. At a minimum, be a good technical writer and constrain your inquiry by explicitly asking for advice on the few key issues that concern you rather than the contract as a whole. A good lawyer will probably want to whip through the whole text to ensure they understand it, but you can at least try to focus their attention on the parts that are most important to you.

You may be able to find someone in your community who does pro bono work or possibly even a recent graduate who will work for less money in the hope that you'll subsequently become a regular client. For that matter, you may be able to get cheap legal advice from a law student at the local university. You get what you pay for in this case--the student won't know the law anywhere near as well as a graduate--but if you truly can't afford a professional, it's better than going wholly unarmed into battle.

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Geoff Hart ghart -at- videotron -dot- ca
(try geoffhart -at- mac -dot- com if you don't get a reply)
www.geoff-hart.com
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References:
Fwd: Two Contracts?: From: Anonymous Poster

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