Contractual Awareness
Open Course
Our Contractual Awareness course is currently only available on an in-company basis. If you are looking for an open course to develop your overall contractual awareness we recommend our 1 day Business Contract Law course as the perfect starting point.
Duration
2 days
What is this course about?
An intensive two-day course, giving you a thorough grounding in the key commercial issues that are essential for business success. In today's competitive environment, people in specialist roles are being seen as having more and more commercial responsibility. Increasingly, these roles drive the level of service and cost delivered to the customer.
Your business is influenced by the increasingly complex relationships that you forge with suppliers, customers and in-company departments.
Your commercial ability has a real impact on the prosperity of your business. It is therefore vital that you have the commercial know-how to deliver your full potential. This training programme has been designed to enable you to appreciate the key commercial issues for business success.
Objectives
The objectives of the course are to:
- Outline the purpose and background to contracts, particularly under common law
- Indicate the relationship between common and statute law as it applies to contracts
- Guide non-specialists in how to approach contracts, how to use them for commercial purposes, and how to deliver against contracts
- Equip non-specialists with the basic skills in reading, understanding, and interpreting contracts
- Enhance their ability to identify the crucial issues in contracts and focus on them
- Provide a range of concepts and approaches that will ensure better contractual understanding and commitment
- Create an all-round awareness of how contracts inform most elements of commercial life
- Create an awareness of when specialist advice should be sought
Methods of teaching
The course is designed to be highly participative and practical. Although some people will initially lack confidence, the aim is to draw out people's own experience and approach and put that within the commercial demands that contracts imply. Some sessions will rely more heavily on transfer of knowledge, but the aim is to make the subject engaging and relevant and to show how an active understanding of contracts and contractual issues can lead to better relationships between contracting parties and, most importantly, achieve the desired ends. One clear aim in this approach is to show how a failed contract is sometimes inevitable, but should always be avoided where possible.
In addition, some of the modules are extremely long potentially, so they are broken up into different sessions. They are aggregated here for convenience.
The division into days below is a rough guide. In practice some groups are already familiar with certain elements or do not need much depth, and the training is sufficiently flexible to respond to the group's needs.
The spine of the course is a PowerPoint presentation that is created around the modules and provides both a resource for the delegates and an aide memoire.
Programme
Day One
1. Objectives of the course
- What the delegates want to get out of the two days (returned to at the end of the second day to see how well we met the needs)
- The stated objectives of the course
- Comparison of the two - and prioritisation
2. Introduction - what a contract is
- The basic purpose of a contract
- The potential for mistakes:
- Objective
- Capacity
- Reasonableness
- Enforceability
- Outcomes
What constitutes a contract? - The essential principles:
- a party must have capacity to contract;
- the purpose of the contract must be lawful;
- the form of the contract must be legal;
- the parties must intend to create a legal relationship; and
- the parties must consent.
- Structure of a contract
- Consensual requirements
- Terms
- Implied
- Express
- Worst case analysis
3. Background to Contract and the Law
- Common law and civil law
- Development of civil law - from Magna Carta
- Relationship of common law to statute law
- Case law - and its effects
- Supra-national law
- Privity
- Estoppel
- Confidentiality
4. The exit clause
- Why start with and focus on the exit clause?
- Implications - comparison with pre-nuptial contracts
- Three possible outcomes of a contract:
- Complete
- Substantial
- Material breach
- Termination for cause
- Termination without cause
- Risk management
- Payments
- Liabilities
- Costs involved
5. Analysis of a contract
- The parts of a contract
- Definitions
- Basis of the contract
- Responsibilities - and confidentiality
- Intellectual property and patents
- Patents
- Copyright
- Trade marks
- Designs
- Owning and ensuring IP
- Draft clauses
- Payments and terms
- Time scales
- Warranties and indemnities
- Complaints and breach of contract
- Liability and limitations of liability
- Termination
- Force majeure
- Notices
- Amendments
6. Language and issues
- What constitutes reasonable?
- Key issues::
- Best endeavours - and similar
- Convoluted sentences
- Convoluted structures
- Punctuation
- Numbering and references
- When to seek specific legal advice
DAY TWO
7. Summary of Day 1 and introduction to Day 2
- Worst case
- Obligations, liabilities
- Essence
- Exit clauses
- Breach
- Legality - statute law and precedent
- How to read and handle contracts
- Re-use of contracts
- When to seek legal guidance
- Alternatives:
- Partnerships and alliances
- Heads of agreement
- Gentleman's agreement
- Good faith
- Indenture
- Letters of intent
8. Defences against a breach of contract - and implications for contracts
- Mistake
- Incapacity, including mental incompetence and ineligibility
- Duress
- Undue influence
- Unconscionability - excessive unfairness
- Misrepresentation and, or fraud
- Frustration of purpose
9. Payment terms
- What are the consequences of the payment terms
- What liabilities are created
- Performance bonds
- Retention
- Damages
- Consequential and direct loss
- Impact of unfair terms law
- Best practice in exclusion and liability
- Liquidated damages - revisit
- Indemnity
- Knock for Knock Indemnity
- Third Party Indemnity
- Responsibility for damage
10. Practical session - a supplier contract
- Understanding the aims and objectives of the contract
- Identifying any issues
- Identifying any red flags
- What practical effect would this contract have on the commercial conduct?
- Are there any elements missing?
- How would you create a schedule for it?
- What issues persist after the completion of the contract
- Learning issues - understanding when to seek legal help
11. Practical session - a specially prepared contract
- Understanding the aims and objectives of the contract
- Identifying any issues
- Identifying any red flags
- What practical effect would this contract have on the commercial conduct?
- Are there any elements missing?
- How would you create a schedule for it?
- What issues persist after the completion of the contract?
12. Contract Management
- Ensuring shared understanding - throughout the life of the contract
- Amending a contract - issues and opportunities
- Standard or bespoke contracts?
- When and how to raise concerns
- Balancing continuity of delivery against the contract and commercial risk
- Responsibility and reporting - upwards, downwards
- Creating a matrix of implications in a contract
