All attorneys want clients —- and all attorney want their clients to have contracts. While the good contract sets out the who, what, where, how, and how long, it also provides for what do you do if the what, why, how and how long are not fulfilled. As much as the actual piece of paper is important, the thinking that goes into getting to the paper is even more important. If you are going to create a contract AND EVEN IF YOU ARE NOT, you need to work through the points that are usually included in a contract.
For example, you are a burgeoning theatre group and you want to rent a theatre space for a month long series of weekend performances. You approach someone in the office of the theatre. They take you on a tour of a large theatre, a small theatre and some rehearsal space. You make a deal to rent the small theatre for $200. You are enough of a negotiator to only pay $100 now and $100 on the last day of performance. (You need the box office!) You feel like you have covered your bases, but what kind of contractual thinking haven’t you done?
Let’s start with the who. In the contract world we call that “the parties.” On your side, are you renting the space for yourself or are you doing it for your group? If you get hit by a bus, will your co-writer, co-creator be able to step into your shoes or does the theatre owner look to you as the only entity who has a $100 deposit? On the theatre side, who are you dealing with? Can this theatre actually rent out space to others? Can they “warrant” (as we say in the law business) that they have the right to do so, or do they have a lease where only they can occupy the space? Making sure you have the right parties who can make an agreement is always important.
So now let’s talk about the what. You rented a small theatre for weekend performances. What does that mean? Does it mean you only get that theatre space from 8 to 10, do you get it all day on Saturday and Sunday? Do you get the opportunity to use the rehearsal space? If you have scenery, do you have to break it down every Sunday and put it back up Saturday afternoon? If you do have to break it down, can you store it there or do you have to haul it away? Have you made assumptions about the sound system and the lighting grid? Are you sure that the set up, the way you saw it, is the way it is going to be delivered to you? In a comprehensive contract, all those things would be included.
So even if you’ve made a deal with your best friend with a handshake, make sure you’ve used your contract thinking to answer:
- the who;
- the what;
- the where;
- the how; and
- the how long.
Next time: There is no “something for nothing.” Consideration in contracts.