WHO SHOULD WRITE YOUR CONTRACT?

by Joelle Steele

Anyone can write a contract. It's a fact. No special licenses or certifications are necessary to write a contract. You can write one yourself, buy a contract template online, hire an attorney, or hire a legal writer or paralegal to do it for you. The question is, which should you do?

Most contracts are fairly simple documents. They are agreements between two or more people (or "parties") or two or more businesses (or "entities"). The contract generally defines and outlines what the agreement is about. For example, if you are having your kitchen remodeled, you might sign a contract that lists all the various kinds of cabinets, countertops, appliances, wall coverings, etc., that are to be installed; how much it is going to cost and how it is to be paid; and the time frame in which the work is to be completed. But, if it is a good contract, it should also include a lot of language to explain what happens if something goes wrong along the way, who's responsible, and how it is to be remedied. People used to refer to that as the "fine print," but it's not really fine print at all in most modern contracts.

Not every person is capable of writing a contract. Even attorneys buy from me. But many people try to write their own contracts, usually with somewhat disastrous effects. I once collected several contracts from landscape companies in southern California. They had all been written or re-written by the landscape companies themselves. I took them to an attorney friend of mine to see what he thought of them. This was when I was first getting into writing contracts to sell as pre-printed forms back in the early 1980s — yikes, I can't believe it was that long ago! Anyway, he pointed out that what was missing from those contracts was almost as significant as the things in them that should not have been included at all. It was a major learning curve for me, and one that continues to this day.

For that reason, writing your own contract might not be something you want to do. You might end up with a contract that doesn't hold up in court if it is ever contested. So what are your other options? Well, if you can't write, maybe you can instead buy a contract template online and customize it yourself. The one thing you do not ever want to do is "borrow" someone else's contract and use it. That is about the biggest mistake you will ever make. You have no idea what may be missing from their contract or how much they may have changed it, possibly adding language that is not even ethical, let alone legally binding and enforceable.

If customizing a contract sounds like it would still be too much for you, perhaps a legal writer or paralegal can help you customize a template or write a new contract for you. If your business is a highly complex one or requires many different kinds of contracts, you should probably hire an attorney. In fact, hiring an attorney is what you should always do if you require legal advice in addition to a contract. For example, if you are incorporating or doing estate planning, a lawyer can ensure that you are filing the right papers, designating the best executors, etc. Estate planning, in particular, should always be handled by an experienced attorney who specializes in that area.

Please remember that a contract must be well-written and easy-to-understand. If the people who enter into a contract do not fully understand it — even all that so-called "fine print" — they will be far more likely to break (breach) the contract in some way. Avoid having any contract that is written with a lot of archaic legalese (e.g., words such as whereas, wherefore, party of the first part, heretofore, etc.). Having a broken contract can be a very costly mistake for everyone who is part of the agreement.