Accession Law LLC


Dec 30, 2015

Does This Contract "Work" in Wisconsin?

Frequently, I am asked by a client, or, more often, a "prospective" client, to give a quick review to a contract form to tell the person whether it will "work."  The situation may arise because the person has obtained a form contract from a library, subscription materials, or from the internet.  Regardless of the source, the person wants me, a licensed attorney, to assure that the form will "work."  The person who has gone through all of the trouble of obtaining the form often believes that I should be able to confirm, in a manner of seconds, whether the form will "work."

What does it mean for a contract to "work?"  Will it be enforceable?  Will it avoid disputes?  Will it protect my interests?  Will it do what I want it to do? Rarely can any of these questions be answered solely by reviewing the contract language.  There are contract forms which are clearly unenforceable.  There are contract forms with obvious errors. There are contract forms which can be easily improved.  However, many of the contract forms one can find on the internet are perfectly fine provided that they fit the client's needs.  Whether the contract form can be used depends upon the intended use.

Consider this analogy:  After watching TV commercials and conducting internet research, one becomes familiar with a particular medication.  One doesn't ask a physician "Does this pill work?"  The real question is "Might this pill work for me given my medical needs, condition and history?"  A physician cannot say, "Well, I don't know anything about your medical needs, condition, or history, but go ahead and use this medication because it `works'."

Why are written contract forms used in the first place?  Contracts are reduced to writing in an effort to reduce ambiguity.  A written contract tries to make expectations clear both for the parties and for any adjudicator asked to enforce the contract.

Note, there are two very distinct reasons why parties enter into contracts - First, it is important to have a "meeting of the minds" on critical aspects of a relationship.  Without such an agreement, there is no contract, and the parties do not have a shared expectation as to how their shared experience will proceed.  A joint venture requires a basic understanding of who is going to do what, how, and with what consequences.

The second reason parties enter into a contract is to build a set of default rules for future disputes.  If, after agreeing upon a contract, all parties later decide to deviate from the agreement, that is fine.  They simply amend the contract by mutual consent.  It is in the case where the parties do not agree in the future that the contract language becomes critical.

In order for me to assess whether, in my professional judgment, a contract form is likely to meet the expectation of the parties and further is likely to properly address likely future disputes, I need to know more than what the form says.  Getting a form is the easy part.

Generally, I can say "Yes, your contract form will work for something."  Whether the best use for a particular form is a business use or lining for a gerbil cage does not depend solely on the form - it depends upon the intended use and the parties involved.