HOT TIPS FOR CONTRACT DRAFTING

Abstract

As children, most of us learned early the importance of being able to "make the rules". The ultimate winner of most games such as hide-n-seek, Capture the flag, marbles and even sand lot football, baseball and basketball was the one who controlled the rules. Such arcane but deadly rules such as "if you hit a foul ball into Mrs. Jones' yard, you are automatically out", have decided many a late afternoon game. So it is in the construction industry.

It's no accident that the AlA, the EJOC, the AGC and ASA all have their preprinted set of "standard forms". These groups have all learned the importance of getting their form on the table, making the other side negotiate off of their form and establishing their form as the industry norm and everything else an unreasonable overreach. Since each of these groups have their own constituency and that constituency does not necessarily put the owner in first place most of the drafting suggestions to follow will be from the owner's point of view. The point of view of the other players are generally well represented in the printed forms produced by their particular group. In all events we have attempted to demonstrate the importance of setting the groundrules and making sure that you, the drafter, understand not only the legal issue involved but the business issue and concomitant risk and cost related. In addition, the following forms intend to take into account the latest edge of the law in determining the enforceability and effect thereof.

Full Text

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