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11. The negotiations about the
contract are over. Which of the parties draws up the
This is the question encountered at the end of any
negotiation. It usually generates two types of attitudes:
1. the drawing up of the contract is avoided because it
is considered that as long as the parties agreed on the
essential clauses it is of less importance who draws it
up. Either of the parties prefer not to waste time on
2. the drawing up of the contract is solicited;
A clever manager knows, however, that the second attitude
is in his/her interest. Even if, following the
negotiations, the parties agreed on the essential
clauses, the balance of the contract is in the hands of
the one who draws up the contract. A jurist with
experience in contracts will KNOW HOW to draw up the
contract so that it includes clauses favourable to him/her
and which represent nothing (are of no importance) for
the other party.
Even in the situation in which the other party has, in
its turn, a jurist specialized in contracts, the party
that draws up the written contract has an advantage out
of situations such as: fear that the other party will
feel offended if too many modifications of the contract
are required, time pressure, etc.
As a conclusion, if you have at your disposal a jurist
with experience in contracts, who has the capacity to
analyze and anticipate potential situations and risks of
the contract, VOLUNTEER TO DRAW UP THE WRITTEN CONTRACT.
12. What are the effects of
vaguely defining the contractual obligations?
Defining the rights and obligations of the parties in a
vague or insufficiently explicit manner may have as
consequence blockages in the execution of the contract.
These lead to delays or even to the impossibility of the
execution. In such situations, the parties usually
renegotiate- process which delays the execution of the
contract. If negotiations fail, most of the times legal
forced execution is required.
Even so, the forced execution may become impossible
because the court may find it difficult to ascertain the
real will of the partners concerning their rights and
13. What happens in case the
delivered merchandise is not in concordance with the
contract, the buyer refuses the reception and the seller
sues asking for the execution?
It depends if the parties have in the contract clauses
about this situation. If there are clauses in this
respect, they apply. If the clauses are missing or if
there is a clause such as "the buyer may refuse
check on delivery if the lack of concordance with the
contract is significant", the court may rule in
favor of the execution, as required by the seller, if the
former acknowledges that the lack of concordance is
significant and that it is equitable that the contract is
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