Contracts written to be lived with
Agreements drafted for how the relationship will actually run, not for how it looks on the day of signature.
Commercial and corporate
Commercial contracts.
Most commercial contracts are read twice. Once when they are signed, quickly, and once when something has gone wrong, very slowly. The clauses that decide the second reading are rarely the ones that were negotiated in the first. What matters is what happens at the end, and almost nobody drafts for that while everyone is still pleased with the deal.
What this looks like when it goes wrong
The commonest failure is a relationship that outgrew its paperwork. It started small, on an email or a single page, and it is now the largest customer or the only supplier of something the business cannot operate without. Nobody wanted to reopen it while things were going well, so the arrangement carrying the most risk is documented the most lightly.
The next is an exchange of documents where nobody knows which set of terms won. You sent yours, a purchase order came back with theirs on the reverse, work started, and both sides have been operating happily on incompatible assumptions ever since. That is decided by what actually passed between the parties rather than by whose terms were better written.
Then there is the exit nobody drafted. Either there is no clean way to end the arrangement, or there is one and it says nothing about what happens next: stock, tooling, data, customers, intellectual property, the licence that keeps the other side operating. Ending a contract is easy. Ending it and knowing what each side walks away with is the part that takes drafting.
The quietest version is a contract changed by behaviour. Late payment tolerated, a variation agreed on a call, a territory allowed to expand by practice, an obligation dropped because it was inconvenient. The signed document says one thing and years of conduct say another, and it is the conduct that has to be explained when somebody finally objects.
What actually decides it
The first question is what the agreement actually consists of. Signed documents, schedules, purchase orders, policies referenced by link and things agreed in correspondence do not automatically form one coherent contract, and clauses about which document prevails and whether anything outside the document counts are there to answer exactly that. Where a term is said to have been agreed in a conversation, the argument is evidential rather than legal, and it is decided by what people wrote at the time.
Termination and its consequences are the most valuable part of the document and the least discussed. Whether either side can leave on notice, what counts as a breach serious enough to end it, whether a failure can be cured, what happens on insolvency or on a change of control, and what each party keeps or returns afterwards are all questions of drafting. There is no standard answer that applies in the absence of one.
Risk allocation runs through caps, exclusions, indemnities and insurance, and these operate together rather than separately. An indemnity that reaches further than the cap, or a cap that swallows an indemnity, is a common and avoidable inconsistency. What any of them actually does in a given situation turns on the words chosen, which is why importing a clause from another agreement without reading the definitions around it so often produces something that does not work.
Labels do not decide relationships. Calling a party a distributor, an agent, a reseller or a partner does not settle what they are, because that is decided by what they do. Someone genuinely acting on behalf of another may attract protections on termination that a party buying and reselling would not, and loose use of partnership language can create obligations between the parties that neither intended. Restrictions on territory, customers, resale pricing and exclusivity engage competition considerations, and cannot be assumed to be enforceable simply because both sides agreed to them.
What we do
The ending drafted first
What happens on exit settled while everyone still agrees, because that is when it can be settled cheaply.
Standard terms that get used
A set of terms, and a way of getting them in front of the other side, so the argument does not start with which set applies.
Reviewing what you are asked to sign
The points that genuinely change your risk identified quickly, so the rest can be conceded without delay.
Agency, distribution and resale
Structures chosen deliberately, with the consequences of each understood before the relationship begins.
Renegotiation without rupture
Reopening an arrangement that has outgrown its terms while the relationship is still worth keeping.
When to spend nothing
Low value repeat business does not justify a bespoke agreement. A sound standard set used consistently is worth more than an excellent one that never reaches the other side, and the effort is better spent on the process that gets terms in front of a customer than on the terms themselves. Reviewing every routine document line by line is a way of spending money on the contracts least likely to matter.
There is also the case where the other side will not move and you want the deal anyway. That is a legitimate commercial decision, and it is a better one when it is taken knowingly. Understanding which clauses actually expose you, and accepting the rest deliberately, is different from signing without reading, even though the signature looks identical.
Commercial and corporate
More on commercial and corporate
- Founders and shareholders
- Corporate structuring
- Deals and diligence
- Joint ventures
- Commercial disputes
Before anything is sent
Positions harden the moment the other side takes advice, and the quiet routes stop being available once a demand has gone out. While nothing has been sent, everything is still open.