Introduction to Drafting Agreements
E. You have a basic draft – Now what?
At this point, and particularly if you have been working on the document alone, circulate it to people within your organization who are in a position to comment on it and suggest revisions or point out gaps, editing problems, leaps of logic, lack of clarity and so on. Often the drafter gets so close to the document that it is difficult to see areas where improvement is required. You understand what you are trying to convey - but does your reader?
Look critically at
a. the wording you have chosen. Are the terms you have chosen likely to lead to problems of interpretation?
b. whether your document is open to questions as to its validity for any reason;
c. whether you have left yourself some room to get out of the deal if things don't go as planned. For example, how have you dealt with the possible need for early termination?
d. whether the remedies you have selected are adequate, legal and enforceable;
e. how or whether you have allocated the risk. Have you included (or do you need) an indemnity clause to protect you from the actions of the other party or others in relation to the subject matter of the agreement;
f. whether you should perhaps require the other party to take out and maintain insurance to protect you from a loss, whether or not you are insured;
A few final points to consider
• What are the formal requirements for the execution of the contract?
• Does the agreement need to be filed somewhere, such as at the Land Title Office?
• Should you include maps, diagrams or other illustrative material?When do you need to consult a lawyer?
This presentation has covered only the most basic aspects of contract drafting. It is certainly possible for anyone to draft an enforceable contract. However, solicitors spend their entire careers developing a host of skills and a body of experience that allows them to avoid many drafting pitfalls unknown to a lay person. The complex body of statue and case law that governs contract formation and the subject matter of the contract itself may not be readily accessible to someone who does not work with them regularly.It is advisable to have any contract you prepare reviewed by your solicitors. Doing the bulk of the drafting yourself can be a cost saving, but review by a solicitor for the problems a solicitor is equipped to help you prevent can be tremendously cost-effective as well. A solicitor can look at your draft agreement and advise you as to the legal consequences of entering into a particular agreement and suggest alternative wording, additional clauses or other refinements that protect your interests more thoroughly.
