5 ms·

IANAL (but spend a lot more time than I would prefer writing and reviewing contracts)...but I don't think your proposal would work in the US. I believe your add

IANAL (but spend a lot more time than I would prefer writing and reviewing contracts)...but I don't think your proposal would work in the US. I believe your additional 'document' would have to be structured as an addendum, which in itself is a sort of contract and technically free-standing from the main/original document. But in this case the original contract wouldn't be valid, because it wouldn't have any specific terms relevant to an agreement between parties, and AFAIK you can't render an invalid or unenforceable contract valid through addendum. What you're proposing also bucks 100+ years of legal writing tradition (both in US and Europe), which itself is very poorly received by attorneys and judges.

jasonhansel 4y ago
IANAL also, but: IIRC contracts typically have an "integration clause" that specifies that the contract constitutes the entirety of the agreement between the two parties. Couldn't the integration clause instead specify that the contract, as combined with the additional document into a single whole, constitute the agreement? See: https://en.wikipedia.org/wiki/Integration_clause https://en.wikipedia.org/wiki/Integration_clause
- dctoedt 4y ago
  See my comment just above yours, concerning "incorporation by reference" (with a link).
  - calny 4y ago
    Lawyer here also (though not actively practicing) and I agree with your thoughtful comment about. I’ve negotiated lots of commercial agreements, and it’s surprising that lawyers still spend time redlining basic things like severance clauses, integration clauses, etc. There’s no real benefit from much of the back-and-forth. It’d be great to have trusted, open source “standard legalese” terms. That way the parties could focus on the contract’s meaningful parts and say something like “This Agreement incorporates by reference the Standard Legal Terms at xyzterms.org.” And of course you could have different versions for various states and industries.
    - dctoedt 4y ago
      > * It’d be great to have trusted, open source “standard legalese” terms.* Working on it :)
    - szermer 4y ago
      When I did paralegal work in NY, we often used Blumberg Forms and just assumed that it covered our needs. https://www.blumberg.com/forms/ https://www.blumberg.com/forms/
dctoedt 4y ago
Lawyer here: It's not unusual to have "master agreements" — either negotiated between two specific parties OR agreed to as industry standards — that are "customized" by agreeing to a schedule, a purchase order, or a work order. Technically, the schedule/PO/WO is the contract, and it incorporates the master agreement by reference. Example: https://www.investopedia.com/terms/i/isda-master-agreement.asp https://www.investopedia.com/terms/i/isda-master-agreement.a... (master agreement for derivatives trading) More discussion of two-party master agreements: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#master-k-read https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin... (my course materials) Incorporation by reference: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#incorp-ref-cmtry https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin... (ditto)
- codatory 4y ago
  Yeah; IANAL but I've spent a lot of time writing contracts for a specific vertical that have been reviewed by several lawyers, and I always built my contracts in this same structure. There would be a MSA that governs the overall relationship -- sets a baseline for what things cost and what their conditions are, and then there would be various contracts that would include the MSA by reference for enhanced or fixed-rate services. Everyone preferred this structure that I dealt with, because the total length of the contracts were dramatically shorter and the structure was much easier to read and comprehend.
- sithadmin 4y ago
  What's being proposed here seemed so odd, structurally speaking, that I didn't even consider it analogous to a master agreement + follow-on contract structure. I'm not sure the analogy is totally a fit - a master agreement should itself be a freestanding, valid contract, no? But in this case the 'base' document is incomplete and invalid. I suppose one could just add the addendum of specific terms at the end of the document and both parties sign off on everything in one go, but I certainly wouldn't want to test it in court.
krageon 4y ago
> 100+ years of legal writing tradition If tradition keeps us from inventing something better for normal human beings, it's called oppression and/or rent-seeking.
- sithadmin 4y ago
  The issue here is that jurisprudence heavily depends upon established precedents that hinge on particular logical and semantic structures present in legal texts. The more you deviate from the norm, the more likely you are to end up in court due to disagreements over interpretation. Safer to stick to what has already has a consensus behind it.
- eru 4y ago
  Eh, not necessarily. Eg musical notation has a lot of tradition and is a bit weird. But I don't see much oppression or rent-seeking there. (Or look at English spelling..)
gamblor956 4y ago
Lawyer here. I've seen B2B contracts like the kind proposed above (the terms as a form attached to a pre-existing contract). They've been a thing for decades; they're just very uncommon and usually aren't used until the businesses already have a pre-existing contractual relationship. Generally, the integration clause is uncommon in the contracts I've seen; it's used in big-ticket contracts (like M&A) but not so much in day-to-day contracts where friction can kill a transaction.

jasonhansel 4y ago

IANAL also, but: IIRC contracts typically have an "integration clause" that specifies that the contract constitutes the entirety of the agreement between the two parties. Couldn't the integration clause instead specify that the contract, as combined with the additional document into a single whole, constitute the agreement? See: https://en.wikipedia.org/wiki/Integration_clause https://en.wikipedia.org/wiki/Integration_clause

dctoedt 4y ago
See my comment just above yours, concerning "incorporation by reference" (with a link).
- calny 4y ago
  Lawyer here also (though not actively practicing) and I agree with your thoughtful comment about. I’ve negotiated lots of commercial agreements, and it’s surprising that lawyers still spend time redlining basic things like severance clauses, integration clauses, etc. There’s no real benefit from much of the back-and-forth. It’d be great to have trusted, open source “standard legalese” terms. That way the parties could focus on the contract’s meaningful parts and say something like “This Agreement incorporates by reference the Standard Legal Terms at xyzterms.org.” And of course you could have different versions for various states and industries.
  - dctoedt 4y ago
    > * It’d be great to have trusted, open source “standard legalese” terms.* Working on it :)
  - szermer 4y ago
    When I did paralegal work in NY, we often used Blumberg Forms and just assumed that it covered our needs. https://www.blumberg.com/forms/ https://www.blumberg.com/forms/

dctoedt 4y ago

Lawyer here: It's not unusual to have "master agreements" — either negotiated between two specific parties OR agreed to as industry standards — that are "customized" by agreeing to a schedule, a purchase order, or a work order. Technically, the schedule/PO/WO is the contract, and it incorporates the master agreement by reference. Example: https://www.investopedia.com/terms/i/isda-master-agreement.asp https://www.investopedia.com/terms/i/isda-master-agreement.a... (master agreement for derivatives trading) More discussion of two-party master agreements: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#master-k-read https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin... (my course materials) Incorporation by reference: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#incorp-ref-cmtry https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin... (ditto)

codatory 4y ago
Yeah; IANAL but I've spent a lot of time writing contracts for a specific vertical that have been reviewed by several lawyers, and I always built my contracts in this same structure. There would be a MSA that governs the overall relationship -- sets a baseline for what things cost and what their conditions are, and then there would be various contracts that would include the MSA by reference for enhanced or fixed-rate services. Everyone preferred this structure that I dealt with, because the total length of the contracts were dramatically shorter and the structure was much easier to read and comprehend.
sithadmin 4y ago
What's being proposed here seemed so odd, structurally speaking, that I didn't even consider it analogous to a master agreement + follow-on contract structure. I'm not sure the analogy is totally a fit - a master agreement should itself be a freestanding, valid contract, no? But in this case the 'base' document is incomplete and invalid. I suppose one could just add the addendum of specific terms at the end of the document and both parties sign off on everything in one go, but I certainly wouldn't want to test it in court.

krageon 4y ago

> 100+ years of legal writing tradition If tradition keeps us from inventing something better for normal human beings, it's called oppression and/or rent-seeking.

sithadmin 4y ago
The issue here is that jurisprudence heavily depends upon established precedents that hinge on particular logical and semantic structures present in legal texts. The more you deviate from the norm, the more likely you are to end up in court due to disagreements over interpretation. Safer to stick to what has already has a consensus behind it.
eru 4y ago
Eh, not necessarily. Eg musical notation has a lot of tradition and is a bit weird. But I don't see much oppression or rent-seeking there. (Or look at English spelling..)

gamblor956 4y ago

Lawyer here. I've seen B2B contracts like the kind proposed above (the terms as a form attached to a pre-existing contract). They've been a thing for decades; they're just very uncommon and usually aren't used until the businesses already have a pre-existing contractual relationship. Generally, the integration clause is uncommon in the contracts I've seen; it's used in big-ticket contracts (like M&A) but not so much in day-to-day contracts where friction can kill a transaction.