The answer to this question is simple enough: Indeed. We are all aware that in the last twenty years or so there has been an inclination towards contracts to be drafted also by non professionals. Why is that? Normally due to the use of templates and given the need to speedy pace in commercial practice, most companies opt for in-house contract drafting, and not necessarily in the legal department.
I am not sure of the reason for this: I suppose that there is general misconception of what lawyers are meant to do. For many years I have taught “Drafting of Maintenance contracts” in a Master where my students were mostly engineers or salespersons. When it came to theory it was very complicated to get them to accept some principles and apply them as the law requires; and when it came to practice it was even more difficult. On several occasions I have also negotiated contracts with people without a legal background and that has been twice as hard as doing it with a fellow lawyer. I have also intervened to “ fix” the damage done in some contracts drafted by other types of professionals, for example once an architect who drafted a fashion-retail distribution contract. Sadly, there are many cases where you can only ascertain the damage but there is not much you can do and no fixing can be done.
Talking to my clients, when asked why they had not sought legal advice at the time of negotiating the contract, the answer was always the same: we prefer to negotiate or draft contracts ourselves or with the aid of a non-lawyer to save costs. We believe lawyers are needed only in the case of a dispute between the parties. Such way of reasoning always led me to think: what good is this when you have to pay five or ten times as much to repair the damage?You believe you are saving money when you are really risking to spend a lot more than you have estimated at the beginning.
This would lead me to think that, as I do not dare to draw a plan for a building in general everyone should stick to what they have studied and are trained to do.
The reason for that is very simple: contracts may work as long as both parties are happy. However, in case of a delay or a breach that’s when the problems come to the surface. I can’t count the number of times I have been called to intervene in cases of breach of contract where my clients had accepted vicious clauses, unbeknown to me. One of the best examples is relating to accepting applicable law or arbitration clauses without considering the utter importance of such provisions, which are too often overlooked since they are part of the “miscellaneous” section in a contract. Most lawyers specialized in Contracts, know that despite the name “Boilerplate clauses” or “ Miscellaneous” are as important as the rest of the clauses in a contract if not more.
Conclusion: it is definitely better to recur to legal advice as early as the negotiating phase for all the reasons mentioned above. After all, the old expression “better safe than sorry” seems to fit perfectly in this case.
