Introduction to Drafting Agreements
B. Getting started – what do you need to know?
1. Generally
a. Above all, you must know what you expect to achieve with any agreement.
b. Who are the parties? Is there a stakeholder who has been overlooked or anyone else who must agree or approve in order to give effect to the agreement?
c. What is the overall subject matter or nature of the agreement? Is information required from various professionals with regard to terms of art, technical specifications and requirements or parameters of what is possible for the parties to agree to? Ascertain the relevant facts and issues from the outset whenever possible.
d. When is the agreement to take effect? Give yourself plenty of time for multiple drafts of agreements to be discussed and vetted by all parties if possible to avoid arguments later that the contract should not be enforceable because there was not a "meeting of the minds" as to what was being agreed upon.
e. What does the other party reasonably expect to have included in the agreement? Although the first draft of an agreement might well favour the author somewhat, is the document basically fair or will it give rise to feelings that the drafter is not acting in good faith?
f. Contra proferendum - if a court ever has to interpret an ambiguity in your document, it is usually construed in favour of the party who did not draft it, as there is an assumption that the drafting party is at somewhat of an advantage. Avoid the temptation to press that advantage too much, especially where there is a power imbalance between the parties.
