I’m a simple and traditional soul. I believe that contracts should be to the benefit of both parties so far as possible. I believe that clauses should clearly reflect the agreement of the parties as to their meaning and scope. I believe in good faith, in flexibility, and in cooperation. God help me, I even believe in this.
I’m starting to think that I’m in a minority, though. Over the last couple of months, I’ve been involved in a few negotiations where the other side’s apparent objective was to concede as few changes to their standard terms as possible, even where they acknowledged that the contract didn’t reflect their own intentions.
An example. Yesterday, I sat in front of the sales director of a large telecoms supplier as he struggled to control his outrage at being asked to amend a clause that gave him the right to terminate and claim substantial damages for minor breaches of contract. After all, he didn’t actually intend to exercise that right, so what were we complaining about?
The same contract featured a clause obliging us to follow any and all instructions given by the supplier regarding the use of their services. What sort of thing might that cover, we asked? We don’t know, could be anything, we can’t be constrained, but trust us – we won’t use that clause in a bad way.
Well, if trust was enough then we wouldn’t need a contract at all, and I could sit at home in my pants watching daytime TV. I can’t get my head round this approach at all – if the clause doesn’t reflect the way that you intend to use it, why would you refuse to change it so that it does?
The really obnoxious thing about this particular negotiation, though, was his indignation at even being asked to consider changing the clause. I mean, I’m not naïve – I know that I’m not going to get everything that I ask for in a negotiation. But, y’know, it is a negotiation, and I do have the right to ask.
And you can say no. But at least have enough respect to try and persuade me, and to make an attempt to understand where I’m coming from. I’m your client, after all, and there are at least one and a half million reasons why you should be nice to me.
This seems to be a particular problem in the TMT sector. In another recent negotiation, the opposing lawyer told me in terms that I had clearly misunderstood my instructions and that the clause I was proposing was wrong. No explanation or persuasion, just wrong. (It wasn’t, but that’s by the by).
Yes, you’re a big player. Yes, my contract, although large, isn’t going to be the making of your career or your company. But, really, would it kill you to give me a little love?