Most businesses and individuals require contracts and these need to be correctly drafted (or written) so that the terms are clear and don’t give rise to disputes. Setting down the terms and conditions of a contract to reflect the intentions of the parties, as well as dealing with how to address potential future disputes, is one of the most important aspects when writing contracts. Experience in contract drafting and the common disputes that may arise is much more difficult than it sounds.
Getting the right agreement or contract drafted and to negotiate the terms of the agreement or contract require skill and lateral thinking. The contract is there to benefit both parties and should work to be legally binding, clearly set out the responsibilities and prevent disputes arising.
Contracts have essential elements and a skilled contract lawyer will be able to ensure to make your contracts binding and legally enforceable and that those elements are incorporated.
Types of Contracts we can assist with range from employment agreements to sale of business contracts to commercial supply agreements. Contract Law is vast and crosses into many other laws as well.
If you require contracts for your business as a standard form, then you they will need to comply with the ACL. The most relevant is the protection for consumers from unfair contract terms in the ACL. A contract lawyer will be to advise you on your business contracts so that your business is protected, and the terms are fair. Having the right contract will make dispute resolution easier and offer you greater protection for your business.
When preparing a contract, often there is a long negotiation process that takes place between parties. Appius lawyers possess the skills to work through this process. This skill together with your lawyer’s experience in drafting contracts will put you in the best position when entering negotiations.
It is important to go methodically through the steps to ensure that all the relevant information is contained in a written contract. The contract should represent the full agreement between the parties. Your lawyer will also have to consider all the other factors that might give rise to a dispute and ensure that the contract covers those events.
Verbal contracts are legally enforceable, but harder to prove, which is why we recommend to put the agreement in writing.
Once the fact-finding stage has been done and established, the purpose of the contract terms and conditions can be clarified as the contract is drafted. The time it takes to draft a contract depends on the complexity and the uniqueness of the arrangement.
Understanding the context of the agreement is a crucial element. Experience in drafting a contract that considers all aspects will get the best possible outcome. Proper consideration is given to what the extent of the business relationship is. In most instances there are many scenarios to be considered and this is where a lawyer with litigation experience is also helpful, so that the known types of breaches can be covered off sufficiently in the contract to help prevent disputes.
The basic elements to form a contract are:
This is literally the “invitation” to do business together – eg., an advertisement
One party must make an offer
The offer must be accepted
It must be clear that the parties agree to form a legal relationship
A form of payment is required to make the contract binding on the parties and this is typically by way of the payment of a deposit
Our contract lawyers and our law firm handle a wide variety of commercial contracts and agreements both from drafting to disputes and litigation. We can assist whether it is contracted for individuals, small businesses, or medium-sized businesses.
We can provide contract advice and draft contracts for any type of business or personal relationship. We take instructions and make sure that we understand all the elements of how the relationship will work. We draft the contract in consultation with you and negotiate with the other side so that your interests are protected. We also make sure that the contract fully reflects the rights and responsibilities of the parties in the personal or commercial agreement.
We are experienced in handling contract disputes and litigation. You benefit from this knowledge as we draft contracts and agreements to avoid common problems and issues. Our experience in looking for ways to help clients out of contracts and, in the alternative, how to enforce contracts means that we take better care when writing contracts for you.
Boilerplate clauses in contracts often appear in a contract and don’t form part of the substantive subject matter which explains how the contract will be performed.
It is important when drafting and reviewing contracts that these clauses are looked at carefully. They are routine and usually in fine print, but they have a great impact on how the transaction proceeds and how disputes are resolved.
Boilerplate clauses can cover such items as the following:
Defining what law and jurisdiction is crucial and can make issuing proceedings and resolving disputes much easier if this is properly considered. This is a technical point but has a large bearing on how the contract is interpreted and enforced. This is of utmost importance when dealing with international companies and transactions.
This clause is how the parties can make changes to the agreement or contract. It is simple, but once in effect can help or hinder the relationship between the parties.
Clauses can be inserted to clarify who is paying for legal costs for production and signing of contracts and agreements. This is quite often in place in commercial leasing agreements.
Clauses to deal with and protect parties in the events such as war, pandemic, floods, tornadoes and other circumstances beyond the control of the parties should be carefully considered. The phrasing of this should not reflect international counterparts such as “force Majeure” or the German “hohere Gewalt” as it’s applicable to Australian laws. Your contract lawyer must understand the distinctions and how these clauses apply.
The rights, powers and remedies are to provide clarity about what power the parties have and how issues and problems are resolved. If these terms are clearly articulated in the contract, then there is more clarity about how they are resolved and what the remedies are.
Service of documents is a crucial element to most contracts. The method of service of documents is critical to ensure that documents are received in the correct time and manner and can be relied upon.
These are promises or assurances that a party may make. It is important that the effect of the warranties is understood by all parties.
Definitions clearly articulate what is meant by each term and are critical to have correct. When a dispute arises the definitions will be scrutinised by lawyers and barristers and will dictate how the contract is interpreted and enforced.
These are just some boilerplate clauses. They may seem tedious, but once the contract is in play they come to life and must be applicable, provide protection and benefit the parties. A dispute is the ultimate stress test of a contract and having documents that are not properly considered and drafted will inevitably give parties more opportunities to avoid or terminate a contract.
Some issues should be carefully considered by your contract lawyer are:
These clauses should be considered if the relationship needs to be transferred to another party if you sell the business or there is a change of ownership in the future. If your business uses contracts, it is important that they are transferrable if you wish to sell your business.
Quite often restrictions are in place to limit the parties and their rights.
Restraints of trade are typical clauses in employment agreements and other business sale agreements preventing the parties from competing with you directly after the contract is terminated. When drafting restraint of trade clauses in contracts careful consideration must be given so that they can be upheld if challenged.
There are many disputes in groups such as franchises and other sales organisations about how location and territories. Competition nearby and size of territory can affect the profitability of businesses and the value of the contract.
In supply agreements and contracts these clauses are essential to be drafted correctly. It is important that a business can recover the goods if they are not fully paid for. This type of contract and the Personal Property Security Act 2009 (PPSA) and registrations will ensure that you can recover goods if the other party defaults on payment.
Every party should understand their rights and responsibilities and the commercial lawyer will have to understand the elements of the commercial transaction and ensure that the terms are correctly drafted to protect and facilitate the commercial agreement.
How disputes are resolved is important to make sure the dispute resolution process is quick and efficient. Incorrectly drafted this can make it much more expensive and problematic to resolve a dispute.
One of the primary benefits of hiring Appius Lawyers is that you’ll receive personalised service.
Appius Lawyers is much smaller than the mega-firm, but we offer clients expertise and creative solutions at a cost that many larger firms simply can’t match.
One of the top benefits of working with Appius Lawyers is having more flexibility when it comes to billing structure.
The great thing about working with Appius Lawyers is that we focus and take the time to learn your industry, to understand your business and what we can do to help it move forward.
We’re here to help.
I will be back soon
Call Us
Messenger
