It is a little naive to think that in the event of every dispute you can simply take legal action, and justice will be swiftly done. There are more factors in play than just the letter of the law and due process. In reality, civil disputes can be a complex combination of skill, knowledge, funds, time… and of course evidence. Not everyone has an entirely favourable combination of all these.
There are some reasons for litigation that cannot generally be foreseen or avoided, for example non-payment of debt, goods unfit for purpose or some other material breach of contract. However, many legal disputes arise, or escalate simply through misaligned expectations that are usually a result of poorly organized pre-contract discussions, an inadequately defined contact or subsequent miscommunication.
This is something that can be prevented with foresight and careful monitoring. Remember that the written contract is sometimes only part of the binding agreement; in some situations your earlier discussions and working relationship can also form evidence of what has been agreed by implication, or action between the parties.
Below are some general guidelines to prevent future misunderstandings.
- Have all your pre-contract discussions documented; in the event of disputed evidence, they may be used to establish the intention of the parties.
- Still in the pre-contract stage, draw attention en-route to elements that change or progress from earlier discussions, and clarify these markers.
- Make all your requirements to be included in the final agreement clear and in writing. Get responses from the other party to ensure they have received, and understood, your message.
- Don’t ignore any element simply because it appears small or unclear, or you feel that it isn’t relevant. The other party might feel that it is!
- Have a well-structured and clearly worded contract drawn up. If you are engaging a professional in a particular field, the terms of a standard form agreement may apply – make sure you also know what this contains!
- If the contract refers to supplementary documentation, make sure the reference is correct and clear and that you both have the same copy. On-going discussions over months can lead to many revisions and it is easy to loose track of which one is in force.
- Be aware of your exposure in the event of early cancellation or breach of contract by either party.
- Look for early signs that the other party maybe veering away from your expected delivery or performance, and draw attention to this immediately. Passive acceptance of a change could be deemed as explicit acknowledgement.