Over the past 12 months, several court decisions have provided valuable guidance for negotiating and drafting contracts. We also provided some of our own tips. Below is a brief summary:
Contract Management
In July, we discussed a survey that found businesses are struggling to keep up with contract management. For instance, 65 percent of the respondents had more than 1,000 active contracts, but they are rarely stored in one place. The failure to properly monitor and manage key business contracts can have significant consequences on your bottom line. As we enter the New Year, it is advisable to make plans for an annual contract review.
The Value of Silence
In August, we highlighted that silence is one of the simplest yet most frequently overlooked contract negotiation strategies. Among the many advantages, remaining quiet compels the other party to reinitiate the conversation. Most people will offer additional information intended to convince you to accept their offer. However, if they want to close the deal badly enough, the other party may even offer more favorable terms without you having to propose them.
Drafting consumer contracts
In September, the Supreme Court of New Jersey held that arbitration clauses in consumer contracts must explicitly express that the party is forfeiting the right to sue in court. If not, the agreements will not be enforced. The state’s highest court reasoned that “an average member of the public may not know—without some explanatory comment—that arbitration is a substitute for the right to have one’s claim adjudicated in a court of law.”
The Importance of Proofreading
In October, we discussed a multi-million dollar lawsuit arising out of the 2010 oil spill in the Gulf of Mexico, which may come down to the placement of a comma in an insurance document. The lesson — always proofread your contracts (and then do it again for good measure).
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