The golden rule of writing any contract (Part 1)

I had just started reviewing the first draft of a complex contract prepared by a company when I could not avoid thinking: who is this contract written for? Certainly, not for me. The more I went on reading the document, the more the purpose of it was obscure (“for the straightforward pathway had been lost”, Dante would say). Then I realised that what I was giving for granted, is that everybody knows the golden rule of writing a contract: you are just not writing for yourself. In a way, you certainly are: putting black on white the outcome of your negotiation it is definitely the main purpose of your contract. And you are not even just writing for the counterpart. Of course, you want to make sure that the other party understands all the implications of the main terms that were agreed at the table. But, again, this is not the point.

According to my experience, the person you should be writing for, is a third party who knows nothing about your deal, or even your business. It could be a foreign director of your company who has to sign the agreement and little knows about the background of the contract. It could be the new general counsel of the counterpart, who perhaps has a different view on the meaning of a clause negotiated by the former legal manager. And, last but not least, it could be the judge in charge of the dispute on your contract, who has no intention to make an extra effort to discover the hidden sense of decontextualised clauses or the meaning of technical jargon used as a way of showing off (of course, quoting Dante does not count).

Copyright Giorgio Mariani 2016. All rights are reserved.

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