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Contracts, Clauses, and Checklists

"I was recently confronted with an agreement I drafted some 10 years ago which, much to my embarrassment, was still being used possibly slightly edited but essentially still my draft: an agreement I'd put together with maybe 15 minutes of thought prior to drafting. Legally, it was and still is watertight. It also has all the hallmarks of a petty bully. Utterly lopsided clauses not in favour of the the other party, stringent obligations placed on them... the works.

Somewhere between having mellowed with age and having no particular need to demonstrate that I'm aggressively protecting client interests, today, that isn't an agreement I would consider drafting. Of course, I still do whatever it takes to protect client interests though not at the cost of potentially destroying their relationship with the other party if I can avoid it.

I'm far more likely to tell a client now than I was 10 years ago that a clause they're proposing is unfair — think of every time you've seen an onerous, unilateral indemnity clause plucked straight out of a software end-user agreement and dumped into what is a far more non-replicable relationship. Or to refuse to include it since it won't hold water — a non-compete clause for 372 years... Um, no. The "Bolne main kya harz hain?" school of thought doesn't appeal to me in the least.

Seeing the old agreement did, however, make me think of how the same person's drafting style changes over time, and how much the style itself and the changes reveal of the drafter."

(Addendum: Here's a folder in which I've been collating my notes on contractual clauses: Contracts, Clauses and Checklists)

This post is by Nandita Saikia and was first published at LinkedIn