Читать книгу How to Be a Lawyer - Jason Mendelson - Страница 23

Any good contractual relationship strives to be a win-win situation for both parties, where each party is incentivized to act in each other's best interests. Many things can drive this. It could be that the business relationship is so important to both parties, so everyone will be a good actor. There can be reputational constraints involved. However, neither of these have any legal teeth to make sure everyone behaves. Consequently, contracts were developed to make sure that if something went awry, that good behavior, to some extent, would be enforceable. Think of it this way. The contract is the backstop if folks can't play nice.

While it's nice to think that people are generous of spirit, it's a fact of life that most people, especially in a business context, are driven by self-interest. That's not a bad thing, but it's useful to always keep this in mind. The first thing to think about is, how aligned are people's motivations at the beginning of the relationship? The more alignment, then the smoother the relationship should be. The less there is, then proper contract drafting is even more important. So, if you are wondering “how much lawyering” you should put into a contract, consider this: Is this a “win-win” relationship (like a joint business venture) or is this a “winner take all” relationship (like a settlement agreement)?

We encourage you to deal with misalignments like this openly and directly. Ultimately, if you can't reach an agreement on how to address them, the situation will be bounded by the contractual terms that you have agreed to beforehand. Because of this, it is critical to think about how contracts constrain bad behavior and align incentives. Whenever you are trying to figure out if a particular term is good or bad for you, consider how this will either proactively or negatively decrease the ability for people to behave poorly, or whether the term improves the alignment of your incentives with your counterparty.

If something feels out of whack and you think a particular provision divides the sides' incentives, be careful about accepting it. It's in this vein that you have a very powerful negotiating tool. You don't have to say, “I don't want this term.” Instead, try the approach of, “Wait a minute, this term starts the relationship by dividing us and resulting in our incentives being misaligned.”

Outside of these considerations, every good contract should deal effectively with transactions costs, agency costs, and information asymmetries, which we'll discuss next.