Business law and contracts
- drafting and reviewing contracts to produce a work, supply contracts, lease contracts, service contracts and framework contracts
- establishing standard contract terms, reviewing contractual risks clause by clause
- assisting the tenderer in public procurement procedures, legal review of the procurement documents and of the tender
- ongoing legal support for small and medium-sized enterprises, legal research and written legal opinions
A template instead of a contract: the most common mistake
A contract template downloaded from the internet rarely fits the transaction precisely. The trouble usually lies not in what it contains but in what it omits: the time limit and manner of performance, the consequences of defective performance, the grounds for termination by notice, confidentiality, and the manner in which legal disputes are to be resolved.
In the course of my professional activities as an attorney-at-law I draft and review contracts to produce a work, supply contracts, lease contracts, service contracts and framework contracts. Reviewing is not a stylistic read-through: I identify the risky provisions in writing and set out the solution I recommend.
Standard contract terms
Under the Civil Code, standard contract terms become part of the contract where the party applying them has enabled the other party to acquaint itself with their content before the conclusion of the contract, and where the other party has accepted them.
A stricter rule applies to unusual stipulations. The other party must be separately informed of any standard contract term which departs substantially from the legislation or from customary contractual practice — save where it conforms to the practice established between the parties — and also of any term which differs from a term previously applied between the parties. Such a term becomes part of the contract only where the other party has expressly accepted it after having been so separately informed.
In practice this is what decides most disputes over standard contract terms: the undertaking assumes that the term forms part of the contract, whereas the court examines whether separate notice was given and whether there was express acceptance. The Act further provides that where a standard contract term and another term of the contract differ from one another, it is the latter that becomes part of the contract.
Public procurement
On the tenderer’s side I undertake the legal review of the procurement documents and of the tender. In public procurement a formal defect may lead to exclusion just as a substantive one may: it is therefore not advisable to review the tender in the last hour before submission.
Ongoing legal support
At small and medium-sized enterprises legal questions rarely stop at a single contract. As part of ongoing support I carry out legal research and provide written legal opinions, and I review the contracts and internal policies used on a recurring basis.
Frequently asked questions
Is it enough for me simply to sign the other party’s contract?
Anything can be signed, but the consequences are difficult to alter afterwards. The other party’s contract protects the other party’s interests; the purpose of a review is to make sure you know what you are taking on.
Do I need standard contract terms for my online shop?
Where you conclude contracts on a mass scale on terms determined in advance, standard contract terms are practically unavoidable. What matters is not their existence but that they should become part of the contract in accordance with the statutory requirements.
How detailed is a contract review?
It proceeds clause by clause and is given in writing. I identify the risk, the wording I recommend, and also the points at which no action is required.