As a lawyer I can of course not disregard the fact that a contract is made to bind the parties to certain obligations and that these obligations ultimately can be made enforceable by the court.
I have today listened to Prof. Thomas D Barton, from California Western School of Law, San Diego at the IACCM Americas 2013. His view is that contracts are much more than legal documents, they are also documenting personal and economical relationships. In perspective, we are giving too much room for the legal parts which then underpress the other dimensions. This is one of the reasons for agreements being stuck in the drawer when they also should be used for dimension.
Thomas – among others – call for a change in balance where the legal perspective should step back for a more balanced perspective. Not that it is wrong – it is simply incomplete. There are tools to do this: (i) Contract Design which goes into two steps – joint learning with all stakeholders and production of the agreement for all readers – not only courts. (ii) Effective and Collaborative Communication – Contracts are communication but is really bad communication (one quote was from a professor in Civil law and went something like “I am a professor of law and I cannot understand my credit card agreement”. Part of this is Contract Visualization – which I will return to.
A re-balance would lead to benefit for many stakeholders: Legal would get a better understanding for purpose and clearer formation of the agreement; The Business would be able to use agreement for strategic planning, operational use and governance; and on the Personal level a better balance would lead to reduced costs, learning and better relations.
Let me step back I time – I have written many contracts where I have manifested legal commitments and to be frank I have also had that perspective even if I always have been very clear on the business elements of the agreements and often given them priority. However, in very few cases I have been thinking and written for another enduser than the “drawer”. Sometimes, I have made contracts summaries available as “OEM-contract for Dummies”.
One of the clearest examples that lawyers do not write for the expected audience is the enduser agreements that we accept daily – I recently saw how Apple is presenting their agreements. Not user friendly to say the least. (However – we should not forget that lawyers do this to protect their company from risk – we are raised, trained and fostered to do that).
This actually is a call for change – it is time for readable agreements made for the users (and documenting legal obligations). In plain English, Swedish or whatever.