Contracts are tools to help you do business, and in that sense, you (rather than a lawyer) might be the perfect person to write your own contract.
This might seem counter-intuitive coming from a contract specialist, who helps companies to write their own contracts. When I work with clients, I ask them to tell me (in their own words) what they do and also why. This forms the basis of my contract. Each has a very different style as it needs to reflect that company, not me!
A legal contract
The elements you need for a legally binding contract are not that tricky to create in practice. If you have a signed document between two companies then four out of the five legal requirements are already in place: offer and acceptance (the signed document), intention (presumed between two companies) and there will be some form of value referred to (consideration).
What’s left is to make sure that document contains enough clear and certain terms to create a workable agreement.
5 steps
Like any writing, there are five steps to creating a contract:
- Who? Why? this requires you to think about who you are writing a contract for and why you are bothering.
- Research you need to ensure your contract contains the terms needed to make it workable. If it is a construction contract, start with my 10 essentials. You can get more content from my series of books too.
- Index there is no particular order for contract terms, although it makes logical sense to deal with the most important aspects first. But you coudl write your contract chonologically, party by party, or in any other way that makes it easy to read, find stuff and use.
- Text once you know what you need to include, then write it in plain language, without jargon or legalese. Do not recycle content, especially if you don’t know what it means.
- Edit. Read it aloud. This step is intended to make sure your contract is accurate, brief and clear. It needs to reflect your company’s values, stories, and tone of voice.
What could you do?
Option 1 is to use lawyers to write your contracts – this can result in long, wordy documents you cannot read, understand or use. Those contracts are legally robust but can be hard to negotiate, embarrassing to send to prospective clients, and dysfunctional as tools. Don’t sabotage deal-making with complex contracts or bad processes.
Option 2 is to write your own contracts – many other business people do. You could copy & paste from a variety of (unreliable) sources, with predictable results. I’ve so often seen cut and shut contracts, contracts with jargon from another jurisdiction (such as force majeure, gross negligence), or ones which simply didn’t cover the basics.
Option 3 is to wing it. You could just rely on a handshake, trust or an exchange of emails.
None of these are wrong… but there is an even better option.
What should you do?
You should take control of your deal-making. Start with a blank document, and – by following these 5 steps – produce a record of your deal and workable processes. Having a set of T&C which reflect your values, your processes and which help to sell your goods, works or services will substantially reduce the time and energy to get to ‘yes’ .
Contracts written by users for users might not be perfect, but then no contract ever is!
This 5-step process was developed by Sarah Fox as part of a series of workshops she created on Effective Writing (for engineers, expert witnesses or lawyers) and forms part of her books on writing Construction Contracts in Just 500 Words, available from Amazon.
