I was asked to sign a framework agreement recently [read more] that said it did not create mutual obligations. I refused as that clause showed a fundamental misunderstanding of what a contract does. This was not the first time I had seen this type of clause …
A surveyor contact of mine sent me his terms and conditions for a quick review. My eyes scanned the small print and, although much of the appointment was acceptable, my heart skipped a beat when I read this clause:
It is not intended for there to be any mutuality of obligations between the client and the consultant either during the course of the appointment or upon termination of the same.
Whoa! This is completely wrong. That is exactly what a contract does create. A contract is a record of mutual promises between businesses and their clients.
I advised my surveyor contact to delete the clause. It is confusing, ambiguous, inconsistent with the appointment and unworkable in practice. His argument was that he’d downloaded the appointment from a reputable source – the website of his professional body (!).
It is clear that neither the professional body, nor the users of this appointment had properly read it. How else could this clause creep in unnoticed for many months or years?
What should you do?
Instead of trying to avoid ‘mutual obligations’, you should record your expectations and your client’s expectations – what each of you will do/not do, when and how. This means that you are properly recording what you want from the other. Don’t leave it to chance or pretend it doesn’t take two to tango!