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Legal Talk

Legal Talk

Author: Fwazia Khan
Date: 2017-10-06

Demystifying some clauses found in most contracts

Drafting appropriate contracts is the mainstay of many civil and commercial attorneys' law practices. It goes without saying that the person drafting the contract must have the technical knowledge of the product or service for which the contract is being drawn.

The attorney for whom the contract is being drafted would generally draft the contract in such a way that the terms favour the client as opposed to both parties. For that reason it's always a good idea to get the terms of a contract to be negotiated between the attorneys acting for the different parties, so as to ensure that it's not too one sided.

Having good drafting skills and knowledge of prevailing laws is important for any attorney practising in this field. The Consumer Protection Act, for example makes it compulsory for a contract to be worded in plain English and be easy for a layperson to understand.

The attorney should also be competent enough to navigate through and explain a contract, which was drawn by someone else and provide meaningful legal advice to their clients on the rights and duties flowing from the written contract.

Whilst most agreements would carry their own 'uniqueness', which would be understood by the contracting parties themselves, all agreements generally have a batch of terms in the agreement, which are referred as "boilerplate provisions".

More often than not these provisions are found at the end of a contract and even though they may be considered standard, their inclusion or absence from an agreement could have serious consequences for either of the contracting party. Some of the boilerplate provisions are: -

The Non-Variation / Non Waiver Clause - This provision prevents a party from trying to change the terms of the agreement by later claiming that another oral agreement was reached between the parties.

No Representation clause - Neither party will be allowed to rely on any oral representation, which is not reduced to writing. This is an important provision and unless you can prove that a party was deliberately misleading, you will be bound by this provision.

The Breach clause - This defines what happens in the event of a breach committed by the defaulting party as well as the rights of the aggrieved party. It will also set out the nature and extent of damages, which would be claimed from such breach.

The Domicilium Citandi Et Executandi clause - This provides the address of the parties and sets out where and how service and delivery of any document between the parties will be conducted.

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