Non-lawyers should not Draft Contracts

//Non-lawyers should not Draft Contracts

One thing that makes me uncomfortable is when a person sends me a contract or policy that they have drafted and asks me to rather nebulously “check to see whether they are OK” and then “sign-off” on the contract thereby giving it my stamp of approval. Very often they are a hotchpotch of various policies or web site terms and conditions which have been cobbled together – and usually turn out to be nothing but a (sometimes good) cut and paste hack.

I like to believe that a non-lawyer cannot reliably draft a contract from scratch, which can muster the test of litigation in particular, without the requisite qualifications and training. However, a non-lawyer can draft a contract using a really good template. Ultimately, the purpose of any contract is to:

  • record the intention of the parties;
  • record their respective rights and obligations;
  • provide legal certainty as to what will happen if one person fails to carry out their obligations; and
  • manage the legal risks posed by technology which will have legal ramifications.

The above points will only have any effect if they are drafted in a clear and unambiguous manner, capable of easy interpretation and give rise to relevant, appropriate and determinable legal remedies. If the contract does not fulfil all of these functions, and in particular where it lacks one or more of the essential terms of a contract (as spelt out in laborious detail in contract law) which would render it legally unenforceable, vague and open to one interpretation or contrary to established legal precepts (including case law), then it has failed to fulfil its purpose and is effectively not worth the paper it is written on to each party. As you know, the law is a very precise profession, and you have to be precise in order for things to be correct. For example, the incorrect positioning of a comma has lead to a totally different interpretation result.

Non-lawyers should not be drafting contracts as they do not possess the legal training, nor the experience which one gets from legal practice to be able to confidently and reliably assure a client that the contract will address all the legal risks posed by the technology and provide it with the necessary legal protection.  Contracts are not all always about using precedents as many clients seem to think. They are all about understanding what building blocks (read clauses) need to be put in place in order to ensure that the contract achieves its objective.  Sure precedents play a role, but ultimately one has to understand why one is putting the various building blocks in place.

By |2018-07-26T09:08:49+02:00August 24th, 2009|Categories: Contracts|Tags: |