The need for clay-fired contracts
Contract law is an important art in the world of law and business. It is also a dying art in this world. The reason being is that many individuals find generic contracts online and use them instead. More and more people are doing this. The reason being is that it is quicker and easier to draft one’s own contract then finding and using an attorney.
As a result, business law has been on the decline for attorneys in the field of practice especially for smaller firms. However, it is important to consider whether or not a general contract pulled off the internet will be sufficient for a business or an individual to fit its needs.
Contracts have existed throughout our written history dating as far back as the Sumerians who would write contract on clay tablets and then fire them in a kiln which has made them last for tens of thousands of years. It took time to etch out the terms of the contract on clay and fire them in a kiln. The exercise thereof showed that the Sumerians knew and understood the importance of a contract and its terms. The consequences of a breach were most-likely serious as a result as well.
Contracts are created to tailor to the needs of each individual and business depending on what the parties are agreeing to. It is a mutual agreement where both parties are expected to do some kind of performance on behalf of the other in exchange for services and goods.
In today’s world, many individuals don’t read the contracts they sign. They are not signed on clay tablets. Instead, most contracts are now electronic. With a click of the button, one can say that they have read and agreed to certain terms of a policy and privacy statement. Typically, this action is done without most reading the terms of the policy and privacy statement and or agreement. As an attorney, I read the the language before I sign things.
As much as my wife finds it awkward while the other side is waiting, as an attorney I know that if I sign my name I am agreeing to what is written in the contract. I am bound by those terms into the future. Contracts are like time machines. If a future event happens the terms of the contract that was entered into the past binds that event and what is to occur as a result. There have been times when I have read the terms of an agreement and I don’t agree with some of the terms and I have crossed them out and notified the other party before signing it.
It is harder to do when it is an online terms and conditions where I would have to contact the company and tell them I want the electronic terms and conditions changed. This can lead to a lot of problems. One question can be, is the terms and conditions one just clicks on actually a mutually agreed-upon agreement? Usually terms are negotiated and talked out before agreeing to them. If they are dictated and forced-upon by one party that can lead to possible problems of their enforceability.
Also, the point of a contract is to protect oneself in case of a future occurrence from legal liability. Attorneys have to act like fortune tellers or seers to determine the future and create language to determine any problems. They have to think of many plausible mishaps that could occur.
Another problem with one-sided contracts is that one side can get overly protective in their language. Many contracts say that one individual waives all their rights to sue against a person in case of breach or accident or that they have to pay for their attorney fees. Because of this, many lay people rely on this language and think they are out of luck. However, many of these contracts can be found to be in violation of public policy, meaning that it would violate the whole purpose of the law if one was able to contract away all liability.
Contracts can also makes things a lot easier on the parties in order to resolve an issue in case of a breach or issue which can help both of the parties save money. Most real estate contracts are fill-in-the blank contracts, meaning that each and every contract is the same. However, every real estate contract can be different, there could be agreements on appraisal, changes in the roof, loan terms, promises ect.
The finer the contract to a particular situation the better. Contracts tailored to a particular situation also helps individuals to help protect any assets they give out. This is particularly important to investors. Sometimes many investors are sold on an investment where an individual makes a pitch that is almost too good to be true and promises of a high return in revenue. However, promises are just promises until they are followed through. There can be a lot of risk involved in lending out money.
With contracts today that many people pull offline, the individual that makes the pitch can create a small contract and have little to no protection to the investor. Just like a bank, an individual giving out money should be as cautious as possible and ensure that there are legal protections in place to ensure that they may be able to get part or some of their money back in case of an event gone South.
Attorneys when they draft contracts have over five pairs of glasses when they draft and go over them. One pair of glasses is the general terms that the parties want such as the price and the sale of goods. Another pair is the future language in case things go South. Another pair of glasses is looking at the contract and assuring that the contract is in conformity with the law as well. Contracts are not laws on their own and are still subject to laws of the land and their enforceability.
This is especially why attorneys are important in drafting and interpreting contracts. Another pair of glasses is the terms and their conformity together under the terms and conditions. The contract itself could have terms that are ambiguous or terms that conflict on one another. Are terms need to be written in simplicity and clarity to ensure its enforceability in the future.
Attorneys that have knowledge of the law and how they interplay and knowledge of the terms and how they interplay is an important tool in drafting a contract and in negotiating a contract. A high position in a business or lots of money does not necessarily mean one knows all of the laws under the contract.
A contract is to help dictate an agreement and transaction and protect the parties. A lopsided agreement that has not been properly discussed and just signed by the other party can lead to a lot of trouble in the future. And without a contract to protect one’s rights, it is harder to get a remedy.
I would suggest talking to an attorney to at least review an agreement and make recommendations before entering into it or to help negotiate terms with the other side. Those that plan ahead will ensure they have clay-fired tablets that will last throughout the term of its intended purpose.
*We do not have a kiln located at our firm but if someone really wants their contract clay-fired we will make sure that becomes a reality.