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I was recently reminded of the popular Ted Talk by Simon Sinek, called Starting With Why. It’s worth a watch. Sinek describes how, very often, organisations fall into the trap of focusing on what they do and how they do it but forget to ask the question ‘Why?’.
As a commercial lawyer, I spend a lot of time drafting and negotiating contracts. In this world, there is a lot of excitement about how technology is transforming the way in which contracts are created, negotiated and managed. There are established tools for automating the way contracts are created, as well as more advanced technologies that can ‘intelligently’ analyse the content of vast quantities of text. Steps are also being taken to develop ‘smart contracts’, which could enable contracts to be ‘agreed’ automatically, with little or no human intervention.
In all this excitement, I wonder how many people are asking the question ‘Why?’.
I don’t mean “Why automate?”. I’m sure everyone understands the benefits of ‘faster and cheaper’. What I have in mind is a much more fundamental question: “Why do we write contracts at all?”.
This may seem like an odd question for a contract lawyer to ask, but I think it’s an important one to consider if we want to implement technology in a way that genuinely improves how we currently do things. I also think it’s a question too often neglected, even outside of the technology debate.
So with that in mind, here are some thoughts on why we put so much effort into (written) contracts.
For me, the core purpose of contracts is to prevent disputes and help resolve them where necessary. We may have drifted away from this (something I’ll come to later), but for me it is the ‘Ground Zero’ of why we put so much effort into agreeing contracts.
Writing a deal down helps prevent arguments about what was agreed. The process flushes out misunderstandings and the result provides evidence of the outcome. If needs be, contracts can also help others — like an arbitrator or a judge — settle a dispute between the parties.
If there was no risk of a future dispute between the parties, then there would be little need for a contract at all. A statement of the obvious I’m sure, but one worth reflecting on.
It reminds us that, at heart, contracts are about human relationships that are fragile and un
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Chris is a commercial and technology lawyer - and also a ‘legal engineer’.
He has spent most of his career working in-house, first at BT and then Royal Mail. Chris now works at Simmons Wavelength - the world’s first regulated firm of ‘legal engineers’ – where he leads their contract management work with clients, helping to optimise how contracts are created, agreed and managed. Wavelength is a multidisciplinary team, made up of experienced lawyers, data scientists, operations professionals, developers and more.
Chris started his legal career at DLA Piper, where he trained and worked as an IP and commercial lawyer before moving in-house.
Outside of work, Chris is married to Ruth and has three young sons. When he’s not watching under 10s football from the sidelines, Chris enjoys playing trumpet and drums and walking in The Peaks.
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