Two Contracts? (take II)

Subject: Two Contracts? (take II)
From: Geoff Hart <ghart -at- videotron -dot- ca>
To: TECHWR-L <techwr-l -at- lists -dot- techwr-l -dot- com>, Beth Agnew <beth -dot- agnew -at- senecac -dot- on -dot- ca>
Date: Tue, 20 Dec 2005 16:05:46 -0500

Beth Agnew noted: <<I often have clauses in my contract that the client typically doesn't include, such as kill fees, and waivers of liability. The problem with merging two contracts, is that the client might agree to your specific terms, but not want to incorporate such terms into "their contract". They also generally do not want to just use "your" contract, even if their clauses are added. Silly, but, hey, lawyers.>>

I'm the first to mock lawyers--not without some fear that I may some day have to depend on one to save my sorry butt <g>--but there's actually a good reason for this reluctance to simply merge contracts. Lawyers, like engineers, programmers, scientists, and other SMEs, have their own jargon, and it's not the same English language the rest of us use.

As a result of jurisprudence [sic], certain wordings have come to mean certain things because they have been interpreted in specific ways in previous court cases. You alter those wordings at your peril, because the new wordings may no longer match previous wordings that everyone agrees on and can thus lead to protracted and expensive disputes over the new meaning. Hence, it's a reasonable and conservative approach not to want to merge contracts and modify wordings, particularly if the two contracts are written based on the jurisprudence for different jurisdictions. If you think legalities get messy within a jurisdiction, the mind boggles at what happens between jurisdictions.

I agree that this seems silly--speaking as someone who spends his working life trying to ensure clear communication--but there you have it: the reality is that jurisprudence and a bizarrely distorted version of the English language are the reality in the legal system. Without being experts in that language, we must tread very carefully in suggesting modifications.

<<Contracts are really meant to codify the meeting of minds of two parties to an agreement. Any points of conflict should be discussed, negotiated, and sorted out before you start to do business together. Don't count on the contract saving a situation gone bad.>>

That's a crucial point. If it comes down to a legal battle, everyone loses--but most particularly, you do, because you don't have pockets as deep as the typical large company.

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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
Re: Fwd: Two Contracts?: From: Beth Agnew

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