Contract Law Checklist

Negotiations take place within the “shadow of the law.” Even when you plan to hire an attorney to review your final contract, you should use the following checklist during negotiations to ensure that your agreement will be enforceable. For further information and examples, see Chapter 8, “Use Contract Law to Complete Your Negotiation,” in Negotiating for Success:

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  1. Are you using a preliminary document? (If you are using a preliminary document—often called a Letter of Intent, Memorandum of Understanding or Agreement in Principle—state in the document that it is for negotiating purposes only and not a final contract.)

  2. Have you reached a final agreement? (After the other side makes an offer, be careful when adding terms to your “acceptance.” A counteroffer can terminate an offer.)

  3. Have both sides given up something? (This is the “consideration” requirement. Be especially careful to meet this requirement when you are amending a contract.)

  4. Is the agreement legal? (Remember that legality requirements extend beyond violation of criminal law and can include violations of public policy.)

  5. Is the agreement in writing? (Even when not required by law, it is sound practice to put all your agreements—including contract modifications—in writing.)

  6. Does your written contract include all the terms that you negotiated? (Although the law varies from country to country, there is a risk that courts will not enforce agreements that are not part of the written contract.)

  7. Are there any implied terms that are not part of the written contract? (In addition to implied terms, courts might also review your past dealings with the other side when interpreting the contract.)