Contract Negotiation Series Part 2: Who Should Draft The Contract?

Commercial & Corporate Law

Family couple consultations with a lawyer agent

Click here for Part 1 of our Contract Negotiation Series

So, you’ve determined that you need a contract and are ready to move forward with the process. But where to begin? We at Sequoia Legal negotiate contracts on a daily basis and are here to help guide you through this process. The next step on your contract journey is to decide who should draft the contract?

Using Your Contract Form

Generally speaking, the party that drafts the contract is in a better position to protect its interests. Re-using prior contract forms is often the easiest option for businesses who have engaged in similar transactions or arrangements before. This is generally a fine practice, provided that the contract form is properly drafted. Even if you have your own contract forms, you should ensure that your forms have been reviewed by an attorney to ensure your interests are protected as much as possible. Once you have contract forms in place, you can adapt the forms on a case-by-case basis and consult an attorney if significant changes to the form need to be made for a given transaction.

You may find the other party hesitant to use your form instead of theirs. You should make the case for using your form by explaining the advantages of using your form (e.g. you have dealt with this type of arrangement many times before, your form is tailored to this arrangement, etc.).

Drafting A New Contract Form

If you do not have a relevant contract form available, your next best option is to engage an attorney to draft a contract tailored to your specific needs. In most cases, the new contract drafted by an attorney can be used as a contract form for subsequent contracts.

Using the Other Party’s Contract Form

If your only option is to use the other party’s contract form, you should review the contract carefully with the understanding that the other party’s form does not account for your best interests. If possible, you should engage an attorney to review and advise you on the contract.

Hunter Boone

Hunter has been a part of the Sequoia Legal team since 2017.  Hunter specializes in general corporate matters, healthcare compliance, international trade laws, and anti-kickback regulations.

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