Corporate & Securities Law

Businesspeople as Drafters and Reviewers of Contracts

By Ken Adams

I recently leafed through Business Contracts: Turn Any Business Contract to Your Advantage (Entrepreneur Press 2007). The publisher was kind enough to send me a review copy. It’s by Laura Plimpton, a lawyer. As the title suggests, it aims to help businesspeople get to grips with contracts.

In just under 200 pages, Plimpton discusses a broad range of contract issues. An appendix contains a further 80 pages of sample contracts. Plimpton’s prose style is breezy, but the book nevertheless requires that the reader pay attention. The contract language included in the book is of course the dreck of mainstream contract drafting, and Plimpton repeats some urban legends, but in that regard she’s in good company. If a businessperson is determined to write or review without the help of a lawyer contracts providing for the sale of goods or services, they’d be better equipped to do so after having read this book. But Plimpton herself notes in the introduction that attorney help is invaluable.

Plimpton’s book is one of a number of books aiming to make business contracts more accessible to businesspeople. Business Contracts Kit for Dummies, anyone?

And I suspect that those making contract models available for free online (see this January 2009 blog post) expect that their users will include businesspeople looking to do their contracts on the cheap.

What determines whether it makes sense for a businessperson to be the one to draft or review a contract? Maybe one is dealing with a spectrum. At one end, the do-it-yourself approach makes sense. At the other extreme, it most certainly doesn’t. Determining where along the spectrum any given transaction falls would be a function of interplay of a few factors:

• Is the transaction very simple?
• Is the businessperson experienced?
• Is the transaction for a relatively low value?
• Is the businessperson unable to afford a lawyer?

If the answer to all those questions is yes, that would suggest that it might be reasonable to have the businessperson draft or review the contract. But if the answer to any of those questions is no, or if the answer is uncertain, you start moving towards the other end of the spectrum.

I suspect that the overriding factor is whether the businessperson can afford to have a lawyer involved. Contracts are so pesky that the safest bet to bring in the lawyers every time. But obviously many people won’t have that luxury. I imagine that the lawyers among you would nevertheless dearly love to have clients err on the side of bringing you in early?one of the more frustrating assignments is having to rescue the client who got in over his or her head.

Full post as published by AdamsDrafting on March 17, 2009 (boomark / email).