Legal Skills: Contract Law: Drafting commercial contracts

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Course Overview

This concentrated professional skills course brings together legal and commercial knowledge across a number of fields, together with linguistic and communication techniques to help you draft clear and unambiguous contracts which will help you achieve your - or your client's - commercial objectives.

Key features of the programme include:

• An outline of different approaches to planning, designing and structuring commercial contracts
• Examples of successful and unsuccessful drafting - with an analysis of why they worked or failed
• Analysis of potential pitfalls and side effects
• Short, practical drafting exercises to highlight the key principles
• Study of legal restrictions and their implications for the drafting of commercial contracts

The programme is relevant to all commercial contracts, whether for goods or services, consumers or business customers, standard conditions or one-off commercial agreements.

Audience

This programme is intended primarily for :

• In-house lawyers
• Solicitors in private practice

It will also be of benefit, however, to other company executives involved in the drafting and negotiation of contracts, e.g.

• Contract directors and managers
• Company secretaries
• Other directors and senior managers

Skills Gained

The drafting of effective commercial contracts by the lawyer for the commercial client requires a range of professional skills organised to a high degree. This can be developed over a period of time, but the process can be greatly accelerated by a course such as this.

This seminar will help you:

• 1. Improve your commercial awareness
• 2. Develop your contract structure and planning skills
• 3. Draft contracts in-line with your commercial and legal objectives
• 4. Understand how the courts will interpret and control written terms
• 5. Learn how to draft contracts to avoid hidden risks and liabilities

Course Outline

The commercial and legal objectives

• Getting started: preliminary considerations
• Use of precedents
• The wishes and needs of the client
• Four philosophies of drafting
• Case study: drafting to achieve mutual understanding
• Rectification
• Plain intelligible language
• How to make a term clearer
• Obscure words
• The uses of formulae to clarify commercial objectives

Strategic ends: some important decisions to be made about the terms of contract

• Time: is it to be or not to be of the essence?
• The consequences of time being the essence
• Positive obligations: firm undertakings or endeavours?
• Third party rights: should they be permitted, restricted or excluded?
• Controlling assignment
• The creation of a trust of benefits arising from a contract
• The Contracts (Rights of Third Parties) Act 1999
• Termination provisions: the choices to be made

Structuring the contract

• The title and description of the parties
• The recitals
• Recitals and the matrix theory
• The terms of the contract
• Special conditions and appendices
• The signature: simple contract or execution as a deed?
• Pre-contractual arrangements
• Post-contractual arrangements
• What is the effect of an entire agreement clause?
• What is a 'framework agreement'?

How to manage the risks

• Risks
• Insurance
• Indemnities
• Further points about indemnities
• Boilerplate clauses
• Exclusions and limits of liability

How the courts will interpret what is written

• Ambiguities, absurdities and technicalities
• The contra proferentem rule
• The interpretation of indemnities
• 'Consequential' loss or damages
• The 'knock on' effect of amendments

Control by the courts: valid and invalid terms

• The rule against penalties
• Unfair terms: some common law principles
• Unfair terms: the scope of the Unfair Contract Terms Act 1977
• Unfair terms: some cases on the test of reasonableness
• Unfair terms in consumer contracts
• Other tests of validity under statute

Legal Skills: Contract Law: Drafting commercial contracts / LE-CL-DC