If there ever was evidence of the human being's inherent treachery it is a contract.
A bright eyed law student will tell you that a contract is an agreement and that same student will probably recite with enthusiasm that an agreement is the result of a meeting of minds. Life on this earth will quickly teach you, however, that signing a contract often brings about consequences to which no right-minded person would have agreed to if there ever was a meeting of minds.
You show me the contract and I will tell you what kind of person is behind the drafting thereof.
Contracts consisting of nearly microscopic fine print covering more than 1 page (that parties are expected to have noticed and remembered at the time of signing) are drafted by control freaks who seem to want the contract to enforce itself. They remind me of those hell-bent old ladies who try to rule their children's lives from the grave one day...
Contracts that say less than what is necessary are drafted by people who are ignorant of the law of contracts and who don't care to get legal assistance.
Contracts using words and terminology that are not understandable to either of the parties signing were drafted by legal practitioners who seek to justify the hefty price for the contract by demontrating how many Latin words and jargon they know.
Now- how do I approach the drafting of a contract?
Well- I want to make certain that all parties to the contract know what they are letting themselves in for. The smallest print that I have ever used in the drafting of a contract is Callibri 11. I reserve my knowledge of big words for when I have to explain somebody else's contract to a client. Lastly- I make sure that both parties know how disputes arising from the contract shall be resolved.
Now- you may ask- is a contract not supposed to be fancy with at least 5 000 words to be "iron clad"?
The law does not require that at all. What the law requires for a contract to have is:
1) A meeting of minds (also known as consensus);
2) The execution of the contract must be possible;
3) The execution of the contract must be legal.
With that last requirement one may laugh when you wonder who on earth would sign a contract to work as a drug runner on a street corner, but it gets more serious when you realise that many employers, service providers and other kinds of people who look down at you from a dizzy height often try to have you sign away your rights. In many cases certain rights can indeed be waived by agreement- or signed away if you will-, but in some cases a contracting party goes to far without the other even noticing.
Outdated provisions for notices pertaining to the agreement being sent by registered post are redundant in this day and age. I don't even bother to ask for a postal address anymore.
I don't mind using dispute resolution clauses providing for arbitration as a dispute resolution process to follow before the Court is involved. I have to date hereof, however, not see the need to make the arbitration process more expensive than the court proceedings that are almost certain to follow by insisting that an Arbitrator be a Senior Counsel that charges R 50 000 per day. An Arbitrator from the Association of Arbitrators is adequate.
The large print that I use deters me from sneaking in any clauses that provide for surcharges or other consequences that would deter a party from signing.
Even though a contract cannot eliminate all disputes- disputes that do arise can be managed and regulated by clauses providing for what kind of evidence shall be deemed sufficient and what presumptions shall be held until rebutted.
These days we learn more than ever how important good relations are between vendors and clients. Trust is an important part of such good relations. Unlike what many heirs of the previous generation would have you believe it is possible to create and foster a healthy and comfortable business relationship whilst both parties rights are secured and recognised.
It is simply up to us to act in good faith.
