One of the respondents to my survey on the future of contracts told me (rather depressingly) that

No-one cares about the contract. They just want the goods

But it is actually more nuanced.

There are two different motives for two distinct stages:

  • before signature: the parties are only focused on meeting internal rules on procurement [legal focus]
  • after signature: the parties are only interested in performance [management focus].

This may explain why the terms we focus on during negotiation (as set out in the IACCM Most Negotiated Terms Report) are legal issues, such as limitation of liability, but the ones which cause disputes are performance issues, such as payment.

What should you do?

According to the IACCM Report you should simplify your contracting process to ensure you:

  • focus on the terms that cost you money
  • use the right contract for the project
  • understand the terms of your contracts (or if not, get training so you are confident with contracts).

And lastly, you have to stop listening to anyone who says that change in not possible. If change isn’t possible, then I would never have written construction contracts in just 500 words!

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