Drafting Enforceable Contracts

Drafting enforceable contracts is not easy. It is nearly impossible to think of every conceivable issue that could arise and that needs to be covered in the document. A few easy steps can help minimize the potential problems with drafting a complete and enforceable contract.

Clearly Identify the Parties:
All parties to the contract need to be clearly set forth. Are the parties individuals or business entities or both? If you want the individual and business entity bound by the terms of the contract, ensure all are parties. This should be in the very beginning.

Lay out What Each Party is Going to Do (or not do) as Part of the Agreement (“Consideration”):
Make sure that the money, services, goods, etc. are completely spelled out so the parties to the contract know who is to do what as their part of the bargain.

Include All Key Terms:
For a contract to be enforceable, set forth all key and material terms. The “who, what, when, where and why” so to speak. If material terms of the agreement are omitted, the contract may be deemed unenforceable.

Clearly state the timing and performance required by all parties to the contract Make the Agreement an “Integrated Contract:”
Actually state that the agreement sets forth “all of the material terms of the agreement” and shall be deemed an integrated contract. In other words, don’t leave out key terms or loosely refer to other unidentified agreements or terms outside the agreement.

Determine Dispute Resolution Method:
If desired, set forth whether disputes should be arbitrated, mediated or resolved in court. State where (venue) should be for the resolution of disputes. Decide if you want an attorney’s fee clause entitling the prevailing party to the dispute their attorney’s fees and costs (usually, if not in the contract, no one recovers their attorney’s fees in a dispute).

Gregory G. Brown, Certified Trial Specialist
Brown & Charbonneau, LLP