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negotiation: legal matters

When people talk about negotiation they naturally assume that the negotiation is in relation to drafting a document, an agreement, a contract, or other legally binding instrument. Whilst English law has never required that the parties conclude a written agreement in order for the contract to be valid, except for special transactions such as the sale of land, despite this today most business contracts are in writing and lawyers are normally involved in any sizeable deal. It is important to distinguish the role of lawyers in giving legal advice from the process of negotiation, whilst lawyers may have an effective veto over some legal aspects of an agreement, such as warranties and restrictions on liabilities, and the jurisdiction to be used, it is important that the negotiating organization manages the overall commercial deal and controls the agreement.

One effect of the introduction of word processing has been to increase the length of agreements and especially the amount of legal boilerplate clauses, you sometimes think that everything, including the kitchen sink, was thrown in. At its worst this results in documents which contradict themselves, duplicate provisions and require a degree in German philosophy in order to understand (I never really got on with Hegal, apologies to Hegalian scholars), such agreements, if they arrive in court, will enrich whole legal practices. If you cannot quickly understand the essence of what a draft document is saying then there are probably problems. Clarity in the use of language and precise descriptions are vital elements in any agreement; weasel words just confuse. LW Melville said that the three graces which a draftsman must satisfy are clarity, conciseness and comprehensibility.

The exceptions to reliance on formal written contracts include some high value industries, such as the diamond trade, where pre-computer age values and verbal agreements still hold. In the diamond trade the trader who fails to honor an agreement faces exclusion from the market. There are still a number of countries where lawyers hold less sway and a businessman's word is his bond, notably in the Far East.

However it is virtually impossible to conclude any significant contract in Europe, or North America, without the involvement of lawyers, or at least the inclusion of legal "boiler-plate" clauses in the documentation. This page therefore leads to a number of resources; legal information on the Web, where you can also find lists of lawyers and copies of legislation, sets of contractual terms published by professional organizations, specialist information on intellectual property, contract law and a list of standard terms and conditions that may need to be included in a contract. In addition details of how to determine your negotiation objectives and develop a commercial infrastructure are posted on this Site.

This site is written in terms of Anglo-Saxon legal experience; i.e. of common law systems and of course excludes all liability to anyone for anything at all, under the laws of England, California, British Columbia, The Isle of Man and New Zealand, to name but a few.

No one should rely on any information, or advice, posted on this site and should always rely on a lawyer qualified and certified to practice in their jurisdiction (hopefully with a valid insurance policy).

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