6 ms·

Here's the problem: if they do end up suing you, and you just accepted whatever provisions they put in their contract, you're going to be screwed. The first ver

Here's the problem: if they do end up suing you, and you just accepted whatever provisions they put in their contract, you're going to be screwed. The first version of a contract always strongly favors the party providing it, it's not malicious, it's just the right way to do it.

cookiecaper 15y ago
It is never right to proffer a deal that you know to be unfair to another party.
- GeorgeTirebiter 15y ago
  Define "unfair". Every contract I've ever seen has been biased in favor of the firm writing the contract. Is this "unfair"? If you want "unfair" - try looking at some term sheets....
  - cookiecaper 15y ago
    Yes, it is unfair to offer a contract that is "biased" to the firm that writes it (within reasonable definitions of "biased").
- rmc 15y ago
  But it might be legal.
- tomkarlo 15y ago
  You're presuming that it's possible to determine that, but generally it isn't. Generally, I know what's fair for _my business_ and it's the responsibility of the other party to determine what's reasonable for them. Different parties will each have their own evaluation of a contract term - I may view something as a major risk and want protection, while the counterparty doesn't view it as likely and is happy to give that protection. This is why negotiating deals can be so interesting. Providing a contract that is favorable to your own needs, while not deceptive, is in no way unfair or unscrupulous. The counterparty always has the right to negotiate or simply refuse to execute the contract. You can't expect to anticipate the needs of both parties and to do so would just make negotiating a deal more difficult, because you'll have less flexibility to give the other side what they need.
  - cookiecaper 15y ago
    It's not your job to anticipate all of the needs of the other party, but you should offer something that seems like it would be reasonably acceptable to each party. You shouldn't offer a contract you know to be "heavily biased" to the author -- you should write up a contract that details a deal you consider reasonable and fair and a deal you believe that the other party will find reasonable and fair, and further negotiations can flow freely. If you offer a deal you know to be unfair and the other party executes it, you should understand that they probably do not understand the terms or do not feel they have an option except to execute it, and that's exploitative. You can't really just shrug it off by saying, "Well, if they accepted it, they must think it's a fair and even-handed deal!" That's not realistic. Quoth John Taylor, third President of the Mormon Church: "It is a common thing among a certain class of men to say I made a splendid trade to-day with Brother So-and-So. But did Brother So-and-So make as good a trade out of you? If he did, all right. But if you, because you happen to be a little smarter, or shrewder on a trade than your brother, have got the better of him, it is not all right, it is all wrong, and I do not think it a credit for a man to be possessed of that kind of smartness. I do not think it a credit to anybody to want something which belongs to somebody else."
    - tomkarlo 15y ago
      "It's not your job to anticipate all of the needs of the other party, but you should offer something that seems like it would be reasonably acceptable to each party." I don't agree that it's possible to know what would be "reasonably acceptable" to the other party when I don't know the inside details of their situation. I'm not their lawyer. Should an agreement be commercially reasonable? Of course. But there's a gulf between that and "reasonably acceptable."
    - adriand 15y ago
      > But if you, because you happen to be a little smarter, or shrewder on a trade than your brother, have got the better of him, it is not all right, it is all wrong, and I do not think it a credit for a man to be possessed of that kind of smartness. Actually, the best kind of deal is the one where each person believes they got the better of the other. To borrow an example that is not my own, suppose two people are arguing over who should have an orange. An arbiter who insists on fairness cuts the orange in half and gives each of them one half. The first person promptly peels his half and eats the orange segments, throwing away the peel. The other person peels his half and uses the peel to bake a cake, throwing away the segments. You can imagine that if each person got his way, each would feel he had the better of the other, and yet, both would be fully satisfied.

cookiecaper 15y ago

It is never right to proffer a deal that you know to be unfair to another party.

GeorgeTirebiter 15y ago
Define "unfair". Every contract I've ever seen has been biased in favor of the firm writing the contract. Is this "unfair"? If you want "unfair" - try looking at some term sheets....
- cookiecaper 15y ago
  Yes, it is unfair to offer a contract that is "biased" to the firm that writes it (within reasonable definitions of "biased").
rmc 15y ago
But it might be legal.
tomkarlo 15y ago
You're presuming that it's possible to determine that, but generally it isn't. Generally, I know what's fair for _my business_ and it's the responsibility of the other party to determine what's reasonable for them. Different parties will each have their own evaluation of a contract term - I may view something as a major risk and want protection, while the counterparty doesn't view it as likely and is happy to give that protection. This is why negotiating deals can be so interesting. Providing a contract that is favorable to your own needs, while not deceptive, is in no way unfair or unscrupulous. The counterparty always has the right to negotiate or simply refuse to execute the contract. You can't expect to anticipate the needs of both parties and to do so would just make negotiating a deal more difficult, because you'll have less flexibility to give the other side what they need.
- cookiecaper 15y ago
  It's not your job to anticipate all of the needs of the other party, but you should offer something that seems like it would be reasonably acceptable to each party. You shouldn't offer a contract you know to be "heavily biased" to the author -- you should write up a contract that details a deal you consider reasonable and fair and a deal you believe that the other party will find reasonable and fair, and further negotiations can flow freely. If you offer a deal you know to be unfair and the other party executes it, you should understand that they probably do not understand the terms or do not feel they have an option except to execute it, and that's exploitative. You can't really just shrug it off by saying, "Well, if they accepted it, they must think it's a fair and even-handed deal!" That's not realistic. Quoth John Taylor, third President of the Mormon Church: "It is a common thing among a certain class of men to say I made a splendid trade to-day with Brother So-and-So. But did Brother So-and-So make as good a trade out of you? If he did, all right. But if you, because you happen to be a little smarter, or shrewder on a trade than your brother, have got the better of him, it is not all right, it is all wrong, and I do not think it a credit for a man to be possessed of that kind of smartness. I do not think it a credit to anybody to want something which belongs to somebody else."
  - tomkarlo 15y ago
    "It's not your job to anticipate all of the needs of the other party, but you should offer something that seems like it would be reasonably acceptable to each party." I don't agree that it's possible to know what would be "reasonably acceptable" to the other party when I don't know the inside details of their situation. I'm not their lawyer. Should an agreement be commercially reasonable? Of course. But there's a gulf between that and "reasonably acceptable."
  - adriand 15y ago
    > But if you, because you happen to be a little smarter, or shrewder on a trade than your brother, have got the better of him, it is not all right, it is all wrong, and I do not think it a credit for a man to be possessed of that kind of smartness. Actually, the best kind of deal is the one where each person believes they got the better of the other. To borrow an example that is not my own, suppose two people are arguing over who should have an orange. An arbiter who insists on fairness cuts the orange in half and gives each of them one half. The first person promptly peels his half and eats the orange segments, throwing away the peel. The other person peels his half and uses the peel to bake a cake, throwing away the segments. You can imagine that if each person got his way, each would feel he had the better of the other, and yet, both would be fully satisfied.