5 REASONS TO HAVE YOUR CONTRACTS WRITTEN BY YOUR LAWYER

The Civil Code of Québec (“C.C.Q.”) defines the contract as being ” an agreement of wills by which one or several persons obligate themselves to one or several other persons to perform a prestation “[1].

A contract is formed by the mere exchange of consents between persons capable of entering into a contract[2] (“the parties“), therefore, a verbal contract is as valid as a written one, however a written contract is always preferable due to the fact it may be used as evidence in case of litigation, subsequently it will be much easier to prove the content of the obligations it contains as well as it’s jurisdiction of its formation.[3]

Although there is a wide range of contract templates available to you, we believe it is still important that your contracts be drafted, or at least reviewed, by a lawyer.

 

So, here are 5 good reasons to have your contracts written by your lawyer:

  • Adapt the text to the its nature: depending on the nature of the contract, specific rules may apply. Your lawyer is familiar with these particular rules, which must be carefully respected. For example, even if the desired contract is one of services to be rendered, in practice it may be legally perceived as an employment contract due to the relationship between the parties. Consequently, considerable problems may be avoided simply by having your lawyer defining the legal nature of your contract.

 

  • Identification of the appropriate parties to the contract: contracting parties who have exchanged their consent are often physical persons, but often times these persons act on behalf of a corporation. Therefore, it is essential to define who is giving a consent and on behalf of whom such consent has been given. If a corporation is party to a contract, a lawyer will be able to make sure that the right person is signing on behalf of such corporation, which must also be properly designated. Furthermore, a party may intervene in the contract (the “intervener”) to guarantee the obligations of another party (e. g. “the surety”). Your lawyer knows which parties to involve in the contract according to the rules specific to the nature of the contract you are considering, all in order to render such contract fully enforceable.

 

  • The careful drafting of a preamble and definitions: the preamble is a section normally inserted at the beginning of the contract and provides the context and reasons which led the parties to enter into such agreement. Your lawyer will carefully draft this part of the contract, as it allows the parties to better interpret the contract when an ambiguity arises. The definitions section on the other hand, legally defines specific words or expressions that could have implications and meanings beyond their usual definition. Your lawyer will be of great help in writing these sections with care.

 

  • The object of the contract and its consideration: the object – is the legal transaction to be contemplated by the parties[4] – whether it is the sale of property, providing a service, the lease of commercial offices, the construction of a building, etc. A lawyer will appropriately identify the object in the contract in order for the parties to get no more, no less than what they wanted to agree upon.

 

The consideration – is usually designated in monetary terms and therefore easy to define. However, such section can be particularly tricky when the counterparty has variously complex payment modalities, if the consideration is other than monetary, or if such monetary consideration is subject to the realisation of another act or event.

 

  • Special clauses: contracts always contain general clauses applicable to all contracts, as well as specific clauses mandatory only to certain types of contracts. Your lawyer will determine the specific clauses that are essentially intended to specify the scope of the rights and obligations of the parties designated in the preamble of the contract. Furthermore, the drafting lawyer will foresee contract termination mechanisms depending on the entry into force of the contract, its duration, the place of training, applicable laws, etc.

 

In short, a contract carefully written by a lawyer, will help foresee and solve many problems should complications arise.  This is true even if you use generic contract templates available on the market, due to the fact that these templates are not sufficiently adapted to your actual specific needs, consequently we firmly believe that even in presence of the best of templates, it is not only important, but mandatory that your contract be reviewed by a lawyer.

 

Jean-Philippe Ponce, Lawyer

 

[1] 1378 Civil code of Québec

[2] 1385 Civil code of Québec

[3] 1386 and 1387 Civil code of Québec

[4] 1412 Civil Code of Québec

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