When it comes to contracts, there’s no such thing as one size fits all. While there are many common terms and themes that appear in contracts --- offer, acceptance, consideration, and the inevitable boilerplate--- each agreement has its own distinctive characteristics. These will be specific to the client and the particulars of the deal.
Nuanced contract drafting ensures they are accurately captured in the agreement. This in turn demands a firm grasp of the trickier aspects of the draftsman’s art. Depending on how the contract is drafted, you can demonstrate exceptional value-addition as counsel or set your client up for bad times down the road.
A typical boilerplate provision in most contracts is called an integration clause. The parole evidence rule, recognized in the common law of every American state and many other nations, operates to exclude oral testimony, especially when an integration clause is included.
Such a provison will also usually operate to exclude other documents from consideration in a subsequent contract dispute. However, commonly the contracting parties tend to attach exhibits to their agreements, rather than spelling out every excruciating detail in the main document.
The attachment may be an original legal document, such as a predecessor contract; a table or other data set or formula too complex to clutter up the contract document itself; a published brochure or engineering/scientific study; or other supplementary materials. Sometimes cross referencing a pre-existing or parallel contract is crucial to a complete understanding, as with an employee handbook, summary plan description, master or umbrella agreement, or predecessor MOU.
Despite the efficiency of attaching a supplement to your contract, there can be important risks to consider in ensuring that the supplemental material has the intended effect.
Despite our best efforts as counsel and our clients’ best intentions, business contractual relationships sometimes result in disputes rather than commercial success stories. From interpretation of the terms of the deal to disagreements over whether one party adequately performed, the parties will need to find a way to resolve their dispute.
What is the best way to do so? Do we go to court? Mediate and/or arbitrate? Renegotiate? Under any one or more of these options, looking to the contract and interpreting its terms will play a crucial role.
Contract law basics; a deeper dive into some of the more complex issue in negotiating, interpreting, and enforcing contracts; and, when the contractual relationship goes sour, the ADR techniques that will keep you clear of the courts.
Regardless of your profession, occupation or business, you swim in a sea of contracts. Your personal life, too, is controlled by contracts; from your auto loan to your mortgage to your health insurance, your world is held together by contracts. Yet few business and professional people really understand the basic rules of contract formation and interpretation, much less the bells and whistles of a complex contract, or what to do if one party or the other is in breach. This knowledge is essential.
Years of Experience: 36+ Years
Areas of Expertise: Human Resources, Employment and Intellectual Property
Jim Castagnera holds an M.A. in Journalism from Kent State University, and a J.D. and Ph.D. (American Studies) from Case Western Reserve University. He practiced law for 36 years, before retiring in June 2019: 10 years as a labor, employment and intellectual-property attorney with Saul Ewing Arnstein & Lehr; 3 years as general counsel for Wharton Econometric Forecasting Associates; 23 years as associate provost & legal counsel for academic affairs at Rider University.
Currently, he devotes his full-time to journalism and teaching. He is the president of K&C Human Resource Enterprises, a freelance-writing, training and consulting company in Greater Philadelphia; the chief consultant for Holland Media Services, LLC, a freelance-writing and communications company in Los Angeles; and, secretary/treasurer of LMC Conflict Training & Conciliation, a non-profit corporation also located in Greater Philadelphia.View all trainings by this speaker