October 19, 2022

By Brian Babcock

Whether you draft your own contracts, are reviewing custom contracts presented by another person, or are trying to use a standard form contract, trying to be your own lawyer is like trying to be your own brain surgeon.

Law students spend an entire year on the theory and interpretation of contracts. It is a very complex area of law. Although there are general rules of contract interpretation, the concept of freedom of contract means that the parties are free at least in theory to invent their own unique deal. It is one thing for parties to agree on a deal, it is another to reduce the deal accurately and clearly to writing. It takes years of experience as a lawyer for that skill to be fully developed.

Even where you are dealing with a standard form contract, there are good reasons to have it reviewed by your lawyer. Sure, you may understand most of it, but what about the paragraphs that are not clear to you?

Consider for one example, what goes into a limitation of liability clause. The damages that may occur can depend on the product, what the buyer does with the product, and how the end user will use the product. Does the seller want to be protected from end user damages that may be disproportionate to the value of their product? Who is in about the best position to obtain insurance whether for third party liability or other losses? What is the creditworthiness of the various parties?

The limitation of liability clause was likely drafted years ago by some lawyer who may or may not have done a thorough job of understanding the business and the risks involved for their client. Their client likely is the opposite party to your contract and therefore their risk management interests maybe the opposite of yours. They may not have considered the possibility that you both might want to pass liability off to another party entirely, or jointly ensure for a risk.

There will be many occasions when you have to accept the wording of a standard form contract if you want to do the deal. Sometimes you can negotiate supplementary conditions that will modify those terms. If not, at least you want to understand the risks that you’re taking so that you can mitigate against them through insurance or other methods.

This is merely one small example of a term that might take up maybe a paragraph or a page in a multi-page contract or might be buried in tiny print on the back of a purchase order. It is something that you often may not think about until after the bad event occurs. Your contract might be full of hidden land mines.

At Weilers Law we encourage our clients to take the time to think about the risks that they are accepting under contracts We know that our clients understand their businesses. We like to work with our clients closely enough to gain some understanding as well.

We are just a phone call or an e-mail away if you have a question about something in one of your contracts. We always appreciate it when you call us before you sign the contract rather than after something bad has happened.

Weilers Law has 75 years experience in drafting custom contracts for specific situations. We have precedents available which will reduce your cost, and the expertise to know when to create made to measure language. Like a good tailor, we want to make it fit.

Also, if the other party has presented you with a custom drafted contract, we have the experience and expertise to suggest revisions, and to help negotiate for the language that would benefit you the most. Many of our clients are great dealmakers. That is why they are successful. We are successful because we are experts at capturing your deal in clear and concise language.

Whether you are about to sign a contract or draft one, we invite you to give us a call to see whether Weilers Law may be the right lawyers for you.

 

(credit where it is due: we took inspiration for the limitation of liability example from a LinkedIn post by Laura Fredrick, a Texas lawyer who has compiled many of her tips from LinkedIn into a book, Practical Tips on How To Contract. To understand the true complexity of contracts, consider that Laura has been posting daily tips for over two years without running out of topics.)