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Nishan Swais. Canadian Business Contracts Handbook
CANADIAN BUSINESS CONTRACTS HANDBOOK. Understand, Negotiate, and Create Your Own
Preface
Introduction
1. Why Learn to Write Your Own Business Contracts?
1.1 Running a business means working with contracts
1.2 Controlling your business costs
1.3 Bringing the law “onside”
1.4 Ensuring certainty in your business affairs
2. What Will This Book Teach You?
2.1 Part I: Understanding contracts
2.2 Part II: The formal elements of a written contract
2.3 Part III: The elements of style
2.4 Part IV: Final considerations
3. Who Is This Book for?
Part I. UNDERSTANDING CONTRACTS
1. What Is a Contract?
1. The Origin of the Word Contract
2. The Three Components of a Contract
2.1 Offer
2.1a No intention to offer
2.1b Invitation to treat
2.1c Advertising
2.2 Acceptance
2.2a No intention to accept
2.2b Conditional offers
2.2c Conditional acceptance and counteroffer
2.2d Revocation
2.3 Consideration
2.3a Sufficiency of consideration
2.3b Adequacy of consideration
3. Exceptions
3.1 Agreements contrary to law
3.2 Lack of capacity
3.3 Lack of mutuality
4. Summary
Worksheet 1: Quiz: Contract or No Contract
2. What Does a Contract Do?
1. Performance
2. Privity
2.1 Capacity
2.1a Individuals
2.1b Business entities
2.2 Attestation
2.3 Privity and a duty of care
3. Breach
3.1 Compensation
3.1a Remoteness
3.1b Mitigation
3.2 Contributory behaviour
3.3 Specific performance
3.4 Anticipatory breach
4. Exceptions
4.1 Mistake
4.2 Misrepresentation
4.3 Frustration
4.4 Unconscionability
5. Summary
5.1 Establishes your rights and obligations
5.2 Allocates risk
5.3 Provides a legal basis for compensation
3. What Does a Contract Look Like?
1. Forms of Contract
1.1 Letter agreement
1.2 Formal agreement
1.3 Other forms of agreement
2. Summary
Sample 1: Letter Agreement
Sample 2: Formal Agreement
Part II. THE FORMAL ELEMENTS OF A WRITTEN CONTRACT
4. The Date
1. Why You Must Date Your Contract
2. How to Date Your Contract
3. The Relationship between Signing and Dating a Contract
4. The Contract Term
5. Summary
5. The Parties
1. Why You Must Name the Parties to the Contract
2. Identifying the Parties to the Contract
2.1 How to identify the other party
2.2 When more than a name is needed to identify the other party
2.3 Investigating the other party
3. Naming the Parties to the Contract
3.1 Which parties should be named?
3.2 Use the parties’ legal names
3.3 Where in the contract should the parties be named?
3.3a Letter agreement
3.3b Formal agreement
4. Attestation — Signing the Contract
5. Summary
Sample 3: Standard Form Agreement
Sample 4: Multiparty Agreement
6. The Terms
1. What Are the Terms of a Contract?
2. What Kinds of Terms Does a Business Contract Contain?
2.1 Background
2.2 What the Parties Will Do
2.3 Time
2.4 Payment
2.5 Warranties
2.5a The remedy for breach of warranty
2.5b Restricting or disclaiming warranties
2.6 Conditions
2.6a Waiving conditions
2.7 Termination
2.7a Termination for breach
2.7b Termination for convenience
2.8 Other terms
2.8a Express versus implied terms
3. Schedules and Exhibits
4. Summary
Sample 5: Letter of Intent
7. Liability Terms
1. What Are the Liability Terms?
2. Limiting the Remedies Available for Breach
2.1 Where limiting remedies is not appropriate
2.2 Limiting the remedies available for breach of warranty
2.3 Service credits
2.4 Limiting the right to terminate for breach
2.5 Protecting yourself from limitations of available remedies
2.5a Remedies not exclusive term
2.5b Liquidated damages
3. Setting a Damages Cap
3.1 Justifications for a damages cap
3.2 Issues to consider when including a damages cap
3.2a Who will the cap apply to?
3.2b What will the amount of the cap be?
3.2c Will there be any exceptions to the cap?
4. Excluding Types of Damages
4.1 General damages versus special damages
4.2 The practical approach to excluding damages
4.3 Exclusions from the exclusion of damages
5. Indemnities
6. Liability Terms and the Courts
7. Insurance
8. Summary
Sample 6: Liability Terms
Sample 7: Insurance Terms
8. The Boilerplate and What It Means
1. What Is Meant by the Boilerplate?
2. Principles of Interpretation
2.1 Terms concerning how the contract is structured
2.2 Terms concerning how the contract is written
2.3 Terms concerning financial and commercial matters
3. General Terms
3.1 Terms concerning the enforcement of the contract
3.2 Terms concerning the relationship of the parties
3.3 Terms concerning attestation
4. Summary
Sample 8: Presenting the Boilerplate
Part III. THE ELEMENTS OF STYLE
9. Gather the Facts
1. Why You Need to Gather the Facts
2. Why You Need to Write the Facts Down
3. How to Ensure That You Gather the Relevant Facts
3.1 Who?
3.2 When?
3.3 How?
3.4 Where?
3.5 Why?
3.6 What?
4. Get the Big Picture
5. Summary
Worksheet 2: Fact Gathering
10. Work with the Law
1. Working with the Substantive Law
1.1 Books
1.2 Case reports
1.3 Government
1.4 The Internet
1.5 Lawyer
2. Working with Drafting and Interpretation Principles
2.1 Language tracing
2.1a Tracing legislation
2.1b Tracing legal documents
2.2 Using templates
2.3 Defining terms
2.4 Rules of interpretation
2.5 Boilerplate
3. Summary
11. Use Plain Language
1. What Is Plain Language?
1.1 Clarity
1.2 Conciseness
1.3 Readability
2. Rules of Plain-Language Writing
3. What to Avoid in Plain-Language Writing
4. Keep It Plain and Simple, but Not Too Plain and Simple
5. Summary
Worksheet 3: Plain-Language Practice Sheet
Sample 9: Plain-Language Words and Phrases
Sample 10: Legal Words and Phrases
12. Define Keywords and Phrases
1. Why Should You Define Words and Phrases?
2. How Do You Know Which Words or Phrases to Define?
3. How to Define Keywords and Phrases
3.1 Rules for constructing definitions
3.1a Use a dictionary
3.1b Include significant meanings
3.1c Exclude significant meanings
3.1d Be alert to technical meanings
3.1e Be alert to legal meanings
3.2 Formal aspects of presenting a definition in a contract
4. Summary
Sample 11: Commonly Used Definitions
13. Use (but Don’t Misuse) Modifiers
1. Using Modifiers in a Contract: Proceed with Caution
2. When to Use a Modifier
3. How to Choose an Appropriate Modifier
4. Using Modifiers Strategically
5. False Advertising and Unfair Competition Laws
6. Summary
Sample 12: Using Modifiers
14. Write with Authority
1. Use the Active Voice
2. Limit the Use of Pronouns
2.1 What is a pronoun and when should you use one?
2.2 Pronouns and gender
2.3 Indefinite pronouns
3. Follow the Rule, “One Idea: One Sentence.”
3.1 Avoid the run-on sentence
3.2 Use conjunctions properly
3.3 Minimize the use of subclauses
3.4 Keep using the active voice
4. Maintain Consistency
4.1 Achieving consistency
4.1a Don’t contradict yourself
4.1b Avoid using unclear, vague, or ambiguous words and phrases
4.1c Be consistent in your choice of words and phrases
5. Summary
Part IV. FINAL CONSIDERATIONS
15. Add the Finishing Touches
1. What Are the Finishing Touches?
1.1 Proofread your contract
1.2 Edit your contract
1.3 Neatness counts
1.4 Use a second pair of eyes
1.5 Sleep on it
2. Why the Finishing Touches Are Important
3. Delivering the Contract to the Other Party
3.1 Ways of delivering a contract
3.1a Slowest and least certain
3.1b Faster and more certain
3.1c Fastest and most certain
3.2 Things to consider when delivering a contract
4. Summary
Worksheet 4: Finishing Touches Checklist
16. Reading Contracts
1. Why It Is Important to Learn to Properly Read a Business Contract
2. How to Properly Read a Contract
3. Redlining a Contract
4. Summary
Sample 13: Redline
17. The Amending Agreement
1. What Is an Amending Agreement?
2. What Does an Amending Agreement Do?
3. What Does an Amending Agreement Look Like?
4. Words of Caution Regarding the Amending Agreement
4.1 The need to reach agreement
4.2 Forms of amending agreement
4.3 Estoppel
5. Summary
Sample 14: Amending Agreement (Formal)
Sample 15: Amending Agreement (Letter)
Conclusion
1. Part I: Understanding Contracts
2. Part II: The Formal Elements of a Written Contract
3. Part III: The Elements of Style
4. Part IV: Final Considerations
5. Be Creative
Download Kit
Dedication
About the Author
Notice to Readers
Self-Counsel Press thanks you for purchasing this ebook
Contents
