If you thought by the title of today’s post that we were jumping ship and reviewing the American reality television show of the same name, rest assured we are not! Today’s post is a reflection of some of the recent contract negotiation work we have assisted our clients with and the importance of bringing your legal advisors early in the game.
Zero sum negotiations are increasingly becoming a thing in the past as arm’s length parties look to true partnerships (not in the legal sense of the word though!), as a desired goal in business relationships. Its time and cost effectiveness, as well as the business stability it brings, has influenced the art of the deal to bring commercial fairness in contract negotiations.
However, the timing of contract negotiations is an important factor to consider as you do not want to find yourself backed into a corner where the other side refuses to accept changes that are important to you. Once you begin work or advance monies in connection with a proposed deal, your conduct could be misinterpreted by the other side as being your agreement to the proposed arrangement – including your agreement to their contract. However, without a signed contract in place beforehand, you could find yourself in a lower bargaining position due to the lessened incentive by the other party to agree to any requested changes or terms you discover when reviewing the contract.
Avoid being caught in such a situation. Before you become invested in a proposed deal or arrangement, connect with your legal advisors first and ideally, bring them in the moment you are seriously contemplating a contractual relationship with a third party. Preserve your reasonable opportunity to advance changes and terms so that you feel confident you are entering a contractual relationship with commercial fairness.
Michelle Eames, LLB, LLM