I don’t mean to say this in a mean way, but boilerplate contracts are boilerplate for a reason. Because every clause in a contract needs to be there for legal reasons, so if you get too creative, or try to revise for “plain English,” you could end up creating a harmful situation. A contract is any agreement that’s bargained for in exchange – in the literal sense. John Rawls, a political theorist, writes about the “social contract.” But in a practical way, you can think about many daily interactions as contracts. You go to the local diner, sit down at the table, order a steak and eat it. The waiter brings you a bill and you pay. This is a contract in action. Every contract needs an offer, an acceptance, and something bargained for in exchange. There are express contracts and implied contracts. In the restaurant situation there isn’t a signed agreement, so it’s an implied contract. The offer is by the restaurant that you will get a decent, edible, non-toxic steak for $7.99 in return for your promise to pay. You don’t have to pay in advance because there is an implied contract, and an established business practice. The acceptance of the contract comes when you order your steak. The “something bargained for in exchange,” or the consideration comes because each party is promising to give up something. The restaurant gives up a steak, and also takes a risk that you won’t pay. And you trust that the steak will be good by eating it, plus you give up $7.99. You also give up your opportunity to eat at a different establishment. So that’s a contract action.
So if you contract with someone to create business documents (that could be defined as “goods” rather than “services”), and the end price is over $1000.00, your contract should be in writing in order to be enforceable.
What happens if you don’t create a written document (and there are requirements about this writing in that it must be signed by the party against whom it is enforceable, it must at least contain enough terms to show a contract has been formed), is that either party could try to get out of the contract, or not pay. It just causes a lot of potential problems with the transaction. Of course, there’s always legal exceptions to the writing requirement. But why go there?
I thought of these issues because as an outcome of my dissertation research, I designed a course for PW curriculum titled “Legal-Rhetorical Issues in Professional Writing,” and one of the books that I use in that course is _Working with Contracts: What Law School Doesn’t Teach You_,” Second Edition, by Charles M. Fox (2008). It came in the mail and as I flipped through the pages I caught this text: “In contract drafting, plagiarism is a virtue. A lawyer drafting a contract should always try to start with a form designed for the kind of transaction involved, or from a contract previously used in a similar transition . . . starting up a contract from scratch is more time-consuming than marking up a good form; precedents contain provisions that address issues in ways that are generally accepted in the legal and business communities; and boilerplate provisions that have been used and accepted in previous transactions are less likely to require careful review and negotiation” (p. 42).
This is a very, very different model of authorship than what we normally learn in school, with all the (over) emphasis on being “original” and not “plagiarizing” and attributing. This is a very interesting disjuncture to me.