Some of you do not read your contracts: you let them gather dust.
If you don’t read your contract, it goes without saying that you probably cannot use it properly. For those of us who spend our lives writing contract, it is depressing to think that our hard work is then ignored!
What should we do about this? One option is to dispense with contracts, and rely on a gentleman’s agreement. For the arguments against that approach, see ‘What if … You Relied on a Handshake?‘
Should You Read Your Contracts?
If you are going to use contracts, then for pity’s sake read them. Best practice, as set out in “Which Contract?”* suggests that you ‘study its contents and understand its implications’.
What’s stopping you?
The truth is that many contracts are pretty un-readable. I don’t mean illegible – they are just turgid, verbose, jargon-filled random assortments of clauses, sub-clauses and sub-sub-clauses.
Perhaps we can lay the blame at the foot of the drafting committees – group drafting rarely encourages simplicity and clarity. A big publisher with a long history (50 years), like JCT, is a no guarantee of readability. Many of the standard form contracts positively discourage reading. They are formatted, referenced and drafted to suit the needs of the drafters. You probably can’t read your contracts without getting bored, distracted, depressed or confused and there is little chance that you will study it or understand its contents, or implications.
I admit that standard forms rarely make logical sense, with a clear progression of obligations (MF/1 and PPC2000 are, perhaps, exceptions), even for a specialist like me.
Is Trust an Alternative?
“Which Contract?” recognises construction consultants who ‘minimise the significance of contract wording by referring to the importance of trust. They blandly talk of the best kind of contract as being the one which is put into the drawer and only taken out when things go wrong.’
But trust is not about ignoring your contract.
Trust is about agreeing and recording a contract which you can read, understand and use. It is about a contract with no hidden surprises, that aims to help you do business (not act as a safety-net when things go wrong). It is about a living breathing document which assists you with your project.
Or is that just the sound of wishful thinking?
* “Which Contract?” by Clamp, Cox, Stanley and Udom (2012, 5th edition, RIBA Publishing). Available from BLISS Books. Interestingly, the authors also state that an appropriate contract “fairly and firmly administered, is the best means of trying to ensure that things do not go wrong in the first place!”