Importance of a Well Drafted Contract
17 MAY 2022
Differences between Anglo-Saxon and Roman legal systems
Unlike Roman law, English law is not codified (there are no set rules written in a book regulating the contractual provisions between the parties) thus it is crucial that English contracts must cover every aspect of the agreement, with consideration to parties’ obligations and assessment of risks in the form of well drafted clauses.
For optimum protection, although oral contracts are legally binding in English law, it is recommended that it is followed by a written contract, containing carefully drafted clauses.
Although there is no requirement that contracts should be in writing, a written contract is like an insurance policy, as it is a form of protection for when and if something goes wrong. Written clauses provide certainty and will protect a party by making their position stronger as each parties’ obligations are clearly expressed and defined, as well as embedding consequences in events of breach, this ensures that each party acts with good faith as well as avoiding complicated disputes, or there is a mechanism to enforce each party’s obligations.
Not having a written contract has proven to be an expensive mistake for businesses, when proceedings are issued in Court it is often difficult to prove the terms of the agreement therefore difficult to prove a breach, as you need evidence from notes (if any) and witnesses to demonstrate a binding agreement had been reached in the first place.
Boilerplates in contracts
Boilerplate clauses deal with the mechanics of how the contract works. Although boiler plate clauses may be considered secondary to other clauses often being buried at the end of the contract, they should not be disregarded. It is not unusual for these clauses to be a cause of litigation since they often deal with issues concerning the interpretation, validity and enforcement of the contract as well as having impact on other clauses and the contract as a whole. Therefore, it is important these types of clauses are well drafted, so any such impact is intentional and not as a result of the inclusion of a clause with little thought.
It is key when reviewing a contract to carefully consider each boilerplate clause that has been included to ensure its inclusion is appropriate in the scope and context of the agreement, and to understand what the position of the parties would be if it were not included.
A key example of the importance of boiler plate clauses is the use of Force Majeure clauses during the covid-19 pandemic and financial sanctions as legal frameworks evolve.
The overarching principle of a Force Majeure clause is that an unprecedented event or circumstances has occurred outside of the parties’ control, which consequently is the sole cause of a party’s inability to perform their contractual obligations. Unless there is an express Force Majeure clause in a contract, the parties cannot rely on this doctrine in English law.
A skilfully drafted Force Majeure clause is also necessary to determine the consequences on the parties. Depending on the wording, the clause can often suspend the parties’ obligations under the contract while the event continues, with their obligations to resume once able to do so, whereas others are drafted to allow one or both parties to terminate the contract. But encapsulating the necessity of the clause to be well drafted is to protect a party from paying damages for breach of contract.
Rapidly changing legal framework
Legal frameworks globally are constantly changing, for example, prevalent in today’s climate are financial sanctions. Financial sanctions are legal restrictions imposed on dealings with specified individuals or entities, or on activities in certain sectors or geographical regions. They are often imposed rapidly in response to countries and governments actions. You must legally comply with sanctions as they may lead to criminal liability, but they also have significant consequences for ongoing contracts, which, if not drafted carefully, could render their future performance illegal. It is often difficult due to the nature of sanctions to predict when entering into a contract whether and how it may be affected. But some issues to keep in mind are that depending on the terms a party may lose its entitlement to payments or even commit a breach of contract even if failing to fulfil the contract was in compliance with a sanction. Therefore, it signifies how these issues can be managed to an extent by addressing them appropriately in force majeure clauses.
In light of today’s world, in a rapidly changing legal framework whether it concerns economic instability, sanctions or a global pandemic, it is evident that a well drafted contract has the ability to provide strong protection for parties in an ever-changing world.
Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.