Just Sign on the Dotted Line : It Is All Boilerplate, Trust Me.
A recent transaction inspired this article. I recently represented a client in a transaction involving a contract. I modified some terms and eliminated overly harsh provisions. I sent the modified contract to the opposing attorney. It was accepted , but with a little push back. The attorney said "Those terms are just boilerplate. No one ever changes them".What does that mean? Does it mean advising a client to sign an entirely one-sided, oppressive contract since it is boilerplate language that other firms convince their clients to accept? Not this law firm. Not our clients. We are the opposite of boilerplate. This article explains a little about contracts, the impact they have on our lives, and how you can protect yourself.
We have all stared at long, boring, confusing, and nonsensical contracts. More often than not, we skip reading them all together. After all, what is the point? It is not like we can change anything right? Wrong.
A Contract is Supposed to be a Bargained For Exchange
A bargained for exchange is exactly what it sounds like. It is an agreement that two people reach after some negotiation. At a minimum,it is a mutual understanding of a deal. Every contract has three components: an offer, acceptance of the offer, and consideration. Consideration is the act if giving something in exchange for something else in return.
We all have probably negotiated contracts without even knowing it. A long time ago, every corner in Manhattan had a guy selling fake Oakley sunglasses. These guys were pushy, annoying, and sometimes just abrasive. But they created competition, which in turn put us in a position to actually negotiate.
One early morning, I was walking in Manhattan. As the sun rose over the nearest skyscraper, the nice shade disappeared. The bright,blazing heat of the sun quickly spread to every corner. The muscles in my eyelids strained, as I squinted hard to prevent the sun from blinding me. After all, my eyes were only 8 years old. I needed sunglasses quickly. But all I had was three dollars. Where could I buy sunglasses for three dollars? The answer was right in front of me on every street corner.
Eventually, I negotiated my first contract. The transaction went something like this:"Hey little man you want some nice sunglasses?" "How much?" "ten" (offer). I laughed in his face and said "the guy down the street just offered me the same pair for five dollars. I'll give you three" (counter-offer). The guy paused and looked down at me with a puzzled expression. He tried another pitch to sell them for five dollars. But my tiny eight year old self knew I could get a better deal. I started to walk away. Then, I heard him say ever so slightly, "fine, three dollars" (acceptance). I gave him three dollars and in exchange he gave me a nice, new, pair of knockoff sunglasses (consideration).
That is all it takes to form a contract ladies and gentleman. The big transactions in our lives require contracts to be in writing. These contracts are for the most part not negotiable. But with a new understanding of contracts, you are ready to at least see the deep end before deciding to dive in.
Read the Contract Before Signing Your Life Away
Contracts are everywhere. When we buy train tickets, we agree to allow law enforcement to randomly search us. It is part of the bargain. You are not new to contracts. Many large transactions such as leasing a car or hiring someone to work on your home, involve a contract. We, as consumers, are always getting contracts to sign, not giving them. After all the warm, fuzzy, talk and promises of excellence are over, someone gives us a contract. The contract is usually written in small font, it is long, half of it is incomprehensible, and a sense of urgency suddenly circles around. But we sign that contract anyway. We think about what we are getting with our money instead of what we are losing.
In modern society, we are expected to just sign the contract. Think of how absurd that is. Now think again. Why wouldn&rsq;t we read what the agreement is about? Shouldn't we know what we are agreeing to? For instance, who pays for the car you just bought if it breaks down on the way home from the dealership? You might be thinking the dealership of course. Maybe. But maybe not. What does the contract say? Does the dealership promise to pay for a new part but not the labor? Are you the buyer solely responsible once the car leaves the lot? Who pays for towing the car back to the lot? What if you miss a day of work?
All these situations, and thousands more, have lead to litigation. When we buy or lease a car, the last thing we think about is it breaking down the same day. But the people who it happened to didn't think their car would break down the same day either when they signed the contract. And when their cars did, they probably wished they had read the contract.
Read the contract to educate yourself. It is good to know the scope of your rights and responsibilities under any agreement. You also might see a clause that you won't agree to. Maybe the other side will remove it. If the other side does not change the clause then you can walk away. You can simply take your pen, cross through what you want out, and include what you want in. No computer required.
A Boilerplate Contract is not a Bargained For Exchange
By its nature, a boilerplate contract is simply a "one size fits all" contract that protects the party it is written for as much as the law will allow. Guess who it doesn't protect? You. So be weary when someone tells you the contract is just boilerplate. As though, it is something that does not matter. That contract will be the exclusive proof used by their lawyers against you in a dispute. Therefore, it is a big deal.
Contracts have consequences that you should pay attention to. If you don't read what you sign then you take a gamble. By reading the contract you at least can know what your odds are. In addition, you may be able to negotiate a better bargain. All you need is a pen and your brain. Last, if you retain an attorney to handle a contractual matter, it is a good idea to retain one with litigation experience. Purely, transactional attorneys are like turtles hiding under their shell. They draft contracts but know nothing about what happens when there is a dispute. Living in a world of academic principals, these lawyers create unfair contracts. We are litigators first and foremost. We know how to negotiate contracts that will put you in the best position possible if a dispute arises. We also know how to get you the biggest benefit for your bargain.
This article is not legal advice. It is an attorney advertisement. It is intended for educational purposes only and is based on the author's experience and opinion. This is not a legal analysis. You must speak with an attorney for legal counsel. Nothing in this post creates an attorney client relationship. You rely on this information at your own risk and hold the Law Office of Chad J LaVeglia PLLC harmless for any consequences that my arise by your reliance on this information. In other words, if you rely on this information, you're fully responsible for the consequences.
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