When it comes to drafting a contract, there are a number of old customs that any lawyer should strive to follow, and we will try to summarize them in a decalogue. But first, join us in this walk through 1660:
The Ancients are the Ancients
Moliere
and we are those of today.
A group of friends meet periodically in a sort of literary brotherhood at a table in the tavern of the “Mouton blanc” located on the mountain of Sainte Genevière near what was then the outskirts of Paris. These four friends wereRacine, La Fontaine, Boileau & Moliere.Never so much talent at a single table, never so cheerful and carefree and never so much modernity that never so soon became classicism and, so classic that its new academicism profoundly marked the future not only of French literature but of all world literature.
Moliere (not to mention Racine!), who proclaimed to the four winds his modernity with respect to the Ancients, today seems to us the summit of a French classicism that even today is perpetuated by the enormous prestige of its Academy of the language and the Comédie Française, still today the institution around which all the most important French theater revolves. The new theater soon became the old theater and even so, many of its rules have not ceased to be timeless.
We could say that something similar happens in the world of contracts. Old or new times (each generation feels the right, and has the obligation, to claim its modernity); old contracts or modern contracts that serve to provide solutions to the needs of their time, and yet they do not appear, they do not disappear from nowhere. They are the fruit of their time, of their future but also of their past. As everything in law, the newest, if it does not want to get old too soon, is part of the oldest and therefore, there are rules of contracts that one should always keep in mind. After all, it is not in vain that the motto of the Roman Empire, the true fathers of Law, and which was vigorously taken up by Emperor Augustus, was that of “Semper vetus, semper novos”, i.e. “always old and always new”.
The so-called “new contracts”, which aim to regulate and collect through new types of contracts, the new services that the new digital, technological, hyper-communicated and immediate services society demands.
In its typology it establishes new distributions of rights and obligations and defines new contractual relationships, but, whatever its form, without its “old” part, without its inheritance of more than two thousand years of legal creation, its “new” part would hardly make sense.
In order not to be too long, at least in these lines, I will only enunciate a decalogue of some “old habits” that the lawyer should try to follow when facing a contract.
- Write clear. Clarity is essential; simplicity, even more so. If a comma can save a life, imagine what can be done with a whole clause of a contract. Let us recall that famous anecdote of Charles I of Spain when he was brought a sentence to sign that said “impossible pardon, that the defendant be condemned”. That day, who knows why, the Emperor felt magnanimous and delicately changed only one comma, leaving the sentence: “pardon, it is impossible for the defendant to be condemned”.
- Better to understand the other than to understand oneself. In addition to the person who has to draw up a contract – who is not usually the one who will be involved in the contract – the parties have to understand what their obligations and rights are and, more importantly, the consequences of those rights and obligations. How many contracts have failed almost before they were executed because the parties had only understood what they wanted – or needed – to understand!
- Conflict whitening. White, at least in our culture, is still the color of purity. If you think that one of the parties is not fully aware of what they are committing themselves to, as a general rule it is better to whitewash the issue as soon as possible. It has been proven that at some point, sooner rather than later, he will realize it and it will only have succeeded in generating distrust towards the rest of the contract.
- You read what you think you have written, almost never what you have actually written. On one occasion a disciple of Kokoshka showed him a painting while saying “I only paint what I see” to which the painter replied. “then see what you have painted”. The best way to know what what what has been written really says is to ask someone else to read it (and the less knowledgeable the better) and make us see what we have written. Of course, we must ask him to read it in the spirit of logical criticism, we should not expect a literary criticism. It is not a matter of judging whether the clauses are correct or not (which would be the object of another type of review), but whether what they say is what we wanted to say.
- Better with sense. It is convenient to make sure that the parties accept what is written and, if not willingly, at least that they have assumed their responsibility because, despite themselves, what is accepted has a meaning (generally economic) for them.
- Neither equality nor inequality: Balance. Seek at least some balance between performance. A contract is a voluntary agreement and is generally based on the maxim “I give so that you give” like a two-way road and in the simplest possible way one should confirm that the road is always “two-way”. A diagram can help in the most complicated cases, defining the parties and drawing with an arrow the benefits that go from one to the other; if for some reason any party has no outgoing or incoming arrows, then one has to start worrying.
- This is not war! Although it may seem so, a contract is not a weapon to annihilate the enemy. A contract is a relationship between two parties (or more), not a rugby match. A contract is not a sporting competition, it is not about winning (although there may be winners) and much less by a landslide! If one of the parties feels defeated, it is most likely that throughout its execution it will look for (and all execution offers many possibilities) any excuse not to comply or, what can still have more serious consequences, to give it back to us.
- First, comply, then comes everything else. The ultimate purpose and sole raison d’être of a contract is to be fulfilled, not to write a story. If we do not make it easier for the parties to fulfill their commitments, our objective will not have been achieved and instead of a contract we will most likely have acquired a problem.
- There is nothing more absurd than the absurd. When drafting a contract, absurd clauses or clauses that state the obvious should be avoided, in itself saying this seems an absurdity and yet it is constantly repeated. The reality is that if the parties request an absurdity it is that someone is thinking of something else; if it is obvious, why put it? And if it is not obvious for any of the parties, it will be because we have not known how to explain it or the other party is interpreting something else. If so, it is better to know it as soon as possible.
- If you do not consult what is written, it is already in your head. And finally, the best contract is the one that once signed “stays in a drawer”. This means that the parties know both their commitments and their rights. When a contract has to be consulted over and over again, the time for problems is approaching.
- And a tip! Since every contract has a life of its own (I am not referring to the contract, because then we would not have done anything of what has been said so far, but to its execution) it is always good to leave some “exit door”. If things are not going the way you want, there should always be ways to terminate it, even at the cost of paying a high price, which will surely always be lower than continuing with it.
I end this list on how to draft a contract, which had no other pretension than to give a lighter touch to the necessary depth of the subject of drafting a contract about which much has been written and by the best. As this is not my case, I hope that the lightness will be appreciated, and even that I have been a little contradictory, for as Umberto Eco once said “you cannot be a fruitful book without also having produced contradictory results”.
