Drafting a contract involves carefully evaluating and writing the detailed terms and conditions of the agreement, aiming to provide clarity to signing parties and other readers.
Both parties must accurately understand the contract’s legal terms to avoid potential conflicts in the future.
Due to the complexities involved in drafting an error-free contract, bringing in the professional expertise of an attorney is recommended. But, ‘to err is human’, and this holds true for professional lawyers too, as they also perpetrate mistakes while drafting contracts.
However, these contract management mistakes appear to be minimal as compared to the ones which common people commit while trying to draft the contracts themselves.
Types of Contract Drafting
Contracts Under Seal:
Earlier, contracts were considered legally enforceable only when they were stamped with a seal by the authorities. This seal ensured official approval and required abiding by the contract by both parties, failing which would make them face legal consequences.
With more businesses and individuals entering into legal contracts, this practice became quite impractical with respect to the fast-paced world. At present, it is not mandatory to have a seal stamped on a contract in order to make it official under most jurisdictions.
Unilateral or Bilateral Contracts:
A contract is classified as unilateral and bilateral depending upon the promises made by one party and both parties, respectively. In other words, a unilateral contract can be defined as a contract that gets formed due to an offer that can come into existence only if the other party performs as per the offer.
This means the payments in unilateral contracts are subject to performance. On the other hand, in bilateral contracts, the payments are subject to meeting the promises made by both parties.
The express contracts enable parties to lay down the terms and conditions both on paper and orally. It works by providing an offer to the recipient, and upon his acceptance of the offer, the contract comes into existence. A written version is legally enforceable, but an oral contract needs the approval of both parties in order to make it enforceable.
Apart from this, it can also be enforced if the oral statements promised at the time of drafting a contract can be proved in a court of law.
Implied contracts arise without written or oral promises when one party expects a service or commitment from the other, like when you order food at a restaurant.
The restaurant is expected to provide the ordered food, and you are expected to pay the bill, creating this contract type. While legally enforceable, proving its existence can be challenging for either party.
Valid, Void, and Voidable Contracts:
A valid contract can be legally enforced since it involves the mutual consent of both parties and constitutes all the elements needed to make it official, explains a top contract drafting service provider. A void contract restricts any kind of legal enforcement due to its open nature and is not considered a contract in the eyes of the jurisdiction.
Whereas a voidable contract constitutes a ‘bound and unbound party’ and is legally enforceable provided the unbound party does not cancel the contract before the bound party performs.
Executed and Executory Contracts:
An executory contract involves duties or obligations for either party. It becomes an executed contract when all terms are fulfilled, and no pending actions remain for either party.
An executory contract is definitely legally enforceable if it fails to get converted into an executed contract.
Top 5 Contract Drafting Mistakes Committed by Lawyers:
1. Non-Inclusion of Complete Deal Terms
A major mistake attorneys make is not fully including the deal’s terms and conditions in the contract draft. Apart from the legal boilerplates, it is essential to include any or all of the following terms, if applicable:
- The basic reason for entering into an agreement
- Statement by any of the parties claiming business expertise
- Complete give-and-take detailing between the parties
- The agreed-upon dates
- Special negotiating circumstances
- Critical deadlines
- Any kind of ‘pre’ or ‘post-contract promise
2. Incorrect Time-Frames and Dates:
The incorrect inclusion of time-frames and dates is seen quite often while drafting the contracts. This is a very critical error which may result in unwanted consequences. Although this type of mistake is more of a typing mistake, it can literally change the meaning of the contract.
Having meticulous contract management drafters on board is an effective way to prevent such occurrences. The dates must be cross-referred with the calendar and deal sheet, along with the confirmation of both parties, before signing.
3. Non-Inclusion of a Termination Clause:
In most of the agreements, the termination clause holds a lot of significance. It clearly states the exemption rules in case the contract fails to meet or fulfill the mentioned terms and conditions.
Excluding a termination clause, which specifies the conditions for ending the agreement and its consequences, may lead to potential legal disputes in the future.
It is important to discuss the termination clause with both parties and incorporate the same while drafting the contract, irrespective of how good a rapport both parties share.
4. Last-Minute Inclusions:
Last-minute inclusions increase the risk of drafting mistakes, particularly when attorneys are short on time. Usually, the last additions sound good but prove to be a hindrance when the document is read as a whole.
In case a lawyer is making last-minute inclusions, it is essential to assess the perspective of both parties. To prevent last-minute additions, it’s best to plan the contract drafting carefully, considering all perspectives.
5. Not Proofreading Enough:
Inconsistencies and grammatical errors are often seen at the end of contract drafting. Therefore, it is essential to eliminate the same by going through the contract over and over. The terms and conditions should be clearly stated, and any further explanation must be incorporated if required.
It is advisable to have senior attorneys review the contract to promptly address any inconsistencies or seek assistance from reputable contract drafting services.
Lawyers are humans only, and ‘to err is human’! However, there is very little scope for error when it comes to inaccuracies in the legal business. The above-mentioned mistakes are some of the most common ones which attorneys commit, irrespective of the experience they hold. However, most mistakes can be prevented if you get assistance from a professional and trusted legal service provider company, which can also help you with other legal processes.
Besides, it is essential to plan and assess the drafting of the contract deeply in order to have an error-free contract.