Just as concrete cancer plays havoc with structures, so does what I’ll call “contract cancer”.
In the early hours of last night I finalised email advice for an entertainment industry client. My advice was on a licence agreement for my client’s sound recordings. The contract was prepared by a multinational company seeking to distribute my client’s content.
The contract was littered with little signs of weaknesses. These were gaps or errors in – grammar, clause numbering, and the choice of words. Two clauses were repeated, each time with different wording.
For a contract drafting lawyer those little signs often point to deeper legal issues.
Half way through the email I added the following paragraph of advice which I believe captures a truism about the relationship between law and trust in business.
“If you had a choice I would say this is the exact type of contract one should never sign in its present state expecting that it will or even may give you security. Many of the issues can be fixed but there are so many it will be time consuming. Further I would recommend that you not even rely on the contract if there is not in existence a high level of trust between you and the people you are dealing with at [name of multinational]. I have often found that poor contracts are a sign of various types of “cancer” in a company.”
I provided the client with a detailed costed proposal on how the contract could be fixed. I also stated the risks associated with that, ie the other side may not then agree.
My conclusion contained this sentence: “The bottom line is that if a written contract is worth doing then it is only worth doing well.”
Those with legal training and contract drafting experience realise that clarity in legal communication requires proper language, grammar, and punctuation. Without accuracy on these apparently minor subjects the integrity of a contract falls away bit by bit.
Apparently minor errors which are allowed to remain in a contract eat away at it like cancer. They also eat into the credibility of its supplier.
Like the impact of concrete cancer, contract cancer can lead in time to an expensive rebuilding or even demolition job. It’s best to get it right the first time.