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 terminologie

• 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

• Drafting tips to compete while maintaining room for negotiation

• 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

• Post-termination obligations: confidentiality and non-competition

Style workshop and contract drafting

• Less is more, commas, dates and numbers

• Drafting representations and warranties

• Non-compete clauses

Contractual risk management and limitations of liability

Contractual risks commonly encountered

• Liquidated damages

• Underlying premises of the Common Law

• Differences with French Law

Contractual limitations 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