Formation - Contracts under Common Law

Developing a mutual understanding despite legal terminology

Civil Law vs Common Law: differences between the Common Law approach to contract law from that employed by the Civil Law

• Uniform Commercial Code/ Statute law/ case law

Drafting effective definition and boiler-plates clauses

• Legal terminology
• The language of contracts
• The role of definitions
• The significance of « whereas » clauses

Exercise: drafting clauses – the devil is in the detail, managing legalese

Opening, conducting and closing negotiations: the role of the lawyer in contract negotiations

Preliminary stages of a transaction

• Handling initial contacts: writing a NDA that works for you
• Negotiation with Anglo-Saxon partners : know the cultural differences
• Drafting preliminary documents: MOU, LOI …; staying on the “safe” non-binding side of a transaction
• Breaking off negotiations without liability

Exercise: drafting and negotiation sessions, drafting an LOI

Drafting sensitive clauses

• Conditions precedent and subsequent
• Representations and warranties
• Consequences of breach
• Dealing with force majeure events and hardship

The term of the contract

• Determining the term of the contract
• Expiration of the contract
• Auto-renewal of the contract
• Discharge of the contract
• Entirety clauses

Style workshop and contract drafting

• Drafting representations, warranties and indemnity clauses
• Non-compete clauses

Contractual risk management and limitations of liability

Contractual risks commonly encountered

• Liquidated damages
• Underlying premises of the Common Law

Contractual management of liability

• Exclusion/limitation of liability
• Legal and public policy constraints

Damages

Exercise: drafting and negotiation sessions, dealing with liability, hardship manage your "frustration", taking liability into your own hands