Post contract (8,9) Flashcards
(23 cards)
How does termination of duties look like in civil and common law
Civil law:
Duties in Primary operative provisions automatically terminate with the contract. Duties in Secondary operative provisions and framework provisions doesn’t automatically terminate
Common Law: All provisions end with termination. If you want some to stay active you have to write it into the contract (survival clause)
The main areas of concern post contract are warranties, confidentiality and competition restrictions.
What is a no partnership clause?
Clause that says that no partnerships are intended in this work.
What is a Dual Lanugage clause
used in international contracts where a version in both languages are made.
It is important to write which version is legally effective. It can be either one or they can have equal legal effect.
What is a general provisions clause?
several clauses added in to one piece to keep contract short.
What is a interpretation clause?
used as a guideline on how the contract should be interpreted.
What are the stages of Contract drafting
Contract drafting: one party make a initial draft.
Contract revision/negotiation: contract is revised/changed based on inputs and negotiation.
Sign contract
What are the advantages of using non state law for model contracts
usually has balanced terms and you don’t need to adapt them to state law
What are the disadvantages of using non state law for model contracts
- No universal acceptance
- It is not a full-scale legal system
- It is not significantly different from state law. It still has regulations
- You can’t go to public courts.
What is a cross system contract?
a Contract where the language doesn’t mach the legal system and concepts.
Example: contract using italian law and concepts but written in english
What are the problems and possible solutions with a cross system contract?
There aren’t a correct translation for the legal concept.
Solution: Make a complete description of the concepts.
There is a translation but it changes the meaning of the concept
Solution: If there is a comparable concept in the written language then use this. If not, act like it is translatable and use the solution for this.
There is a translation but it can have various meanings.
Solution: Define it and treat it lik non-translateable.
What are some advice for contract drafting style?
Be precise
Use short and simple sentences
Avoid passive sentences
Beware of pronouns
Punctuation
Be consistent
Know the specific meaning of leagl terms. Example:
Shall=has to
Consideration=element of contract formation in common law
What is contract revision
systematic revision of what is written to wipe out any mistakes.
What are legal provision to look for in revisions
Is there any missing terms.
Is anything outdated.
Is there anything that can be misinterpreted.
Is there some customs and trade usage (non written law) that need to be accounted for.
What do you need to focus on in terms of language during revision
Is there coherence
can the style lead to ambiguity
Are all terms defined as needed
Is the translation right or should they be used in their original language
How does interpretation of a contract differentiate in civil and common law?
Common law:
The meaning of words it taken literal.
They only focus on what is written directly in contract and doesn’t look at circumstances (four corner rule)
What are the types of ways you can choose to negotiate
you can either choose to negotiate fair and balanced or unfair and unbalanced
How do you negotiate fair and balanced
Translate business goal into legal language
Provide security for both sides through legal provisions
Used in a long-term relationship apporach
How do you negotiate unfair and unbalanced
translate business goals only of the superior party in to legal language
You don’t tell the other party if a clause is unenforceable
Invisible terms are made
Used in a deal-based approach
What is negative strategic posturing
One party is not interested in actually making a contract
Objectives could be:
- to influence a third party to enter into negotiations
- to deter a third party from entering into a market
- to procure information from the counterparty
Countermeasures:
Use memorandum of understanding to document the negotiation period.
Use NDA’s to prevent information being leaked
What is positive strategic posturing
Both parties are interested in making a contract, but one party shows opportunistic behavior
What is collaborative strategic posturing
Both parties are interested in making a contract and act balanced
What is proactive contracting
part of collaborative strategic posturing.
you want to create value and competitive advantages.
What is a playbook
documents which explain what should be done in different situations during negotiation
Advantages:
Time saving
Reduce coordination requirements
Simplify contract reviews becuase there are only certain variations
Disadvantages
Not very flexible
Demotivating for the ones negotiating
