Writing Contracts

Overview

Business is about writing contracts. It’s about operational contracts with your customers on one side and your suppliers on the other; and structural contracts either concerning your employees or your assets and shares.

How well you write and negotiate your contracts is a great determiner of your company's financial health; how well you address the details of your contracts – the responsibilities, key risks, rewards, and dispute resolution - is perhaps even more so.

Contracts are often built on the premise of “limiting the loss if it goes wrong” rather than the equally important concept of ensuring a blueprint for success. It is possible to write 50 to 100 page contracts every time to cover every eventuality. But business is about accepting and managing risk, not avoiding it altogether. The best contracts are those right for the relationship.

This Short Course is designed to enable you to adopt the right process for drafting (or reviewing) the right contract.

Topics Covered

The Short Course will cover:
The importance of understanding the relationship between the parties when writing contracts

• Understanding how the relative position of each of the parties and the nature of relationship intended will have a fundamental impact on the contract
• Similarly, understanding how the importance and risk to your business of the subject matter of the contract will determine how you go about writing a contract
• We will identify tools to help understand the nature of the relationship and its impact on the contract

Understanding your role as a contract writer

• Understanding how your role within an organisation impacts on the process
• Are you a draftsperson, an advisor, a manager, or an owner (or any combination) with respect to the contract? 
• We will examine how your role impacts on the contract writing process to preserve any necessary demarcation of roles and responsibilities

The constituents of a legally binding contract

• When is a document binding? 
• Are heads of agreements or memorandum of understanding binding? 
• We will examine what is required to make a legally enforceable contract and what things will prevent a document from being binding

The rules of Contract Law

• We will identify rules that impact on writing contracts including; misrepresentation, misleading conduct, unfair practices, implied warranties, and privity of contracts

The process of contract writing

• The process of writing contracts involves decisions as to the most appropriate form; understanding operational processes, considerations of failure and their consequences; dealing with changes to drafts; and negotiating with the other party
• We will examine and identify a process to ensure each of these is dealt with appropriately and effectively. 

Issues concerning the form of a contract

• Why is it that most contracts appear written by lawyers for other lawyers? 
• The form, structure and language of a contract impact on its ease of understanding which in turn impact on the likelihood of success
• We will identify how to ensure that the contract is understood by the people that need to implement and manage the contract

A discussion of core clauses relevant to the participants’ business

• We will examine a range of core operational clauses that most relevant to your business

Boilerplate clauses – what is really necessary

• Some contracts have pages upon pages of “boilerplate” clauses. But what is really necessary and what is overkill? 
• We will examine the impact of typical boilerplate provisions, what they mean and what is the risk if they are truncated or eliminated

How to review contracts

• If you are writing contracts you are reviewing contracts
• We will walk through a checklist that will assist you to review a contract and which can also be helped to write contracts

When it all goes wrong…

• The best laid plans (and contracts) can go wrong
• We will examine how to change the contract and how to deal with disputes

How the Short Course works

• The Short Course combines a mixture of theory (background information and case studies), and practice (participant drafting exercises and discussion). The emphasis is on a structured discussion throughout using examples relevant to your own business.

Who should attend

This Short Course is suitable for all persons who are responsible for writing, reviewing or managing contracts whether in the private or public sector.