"CONTRACT" OR "AGREEMENT" AND STANDARD CONTRACT CLAUSES.
With the growing number of documents written in English that pass almost daily through our hands, Spanish-speaking jurists can even get to ask themselves what is more important, have knowledge of law or English?
Obviously, what a lawyer should know, above all, it's the law, but due to the spread of Common Law at the international level, knowing English is an indispensable tool for practise in this area.
On contracts Common Law is very similar to our system (continental law), in this area there are no major differences as in the field of procedural or inheritance law. But nevertheless, there are issues of significant importance to consider. In practice we find often the terms "contract" and "agreement" to refer the same document, so it is important to distinguish them, because the terms are used as equivalents erroneously.
In the Common Law the word "contract" means an agreement enforceable whose performance may be enforce in court, while an "agreement" would be a concert between the parties that may or may not have components and fundamentals needed to give force executive. Anglo-saxon lawyers often use the term "agreement" to refer to the agreement to formalize the contract.
Entering the content of the contract, as we all know, the clauses included in a contract may be varied because of the principle of autonomy also recognized in Anglo-Saxon systems with the term "liberity of contract". However the formalism of Common law in this area leads us to a very common type of clauses, "the boilerplate clauses", suited for all types of contracts. The most commonly used could be:
• Amendment: Which provides the means by which the parties are entitled to make changes to the contract.
• Assignement: Used to refer to the rights and obligations of the parties as to the ability to assign or transmit it.
• Arbitration: to provide an alternative to litigation.
•Confidentiality: This guarantees that the parties will not disclose certain information.
• Contracts (Rights of Third Parties) Act 1999: This statute allows a third party (i.e. a person who is not a party to the contract) to enforce a term of the contract in two situations, firstly if the contract expresses this ability, or secondly if it is apparent that the contract gives him some kind of benefit.
•Entire Agreement: the contract will supersede any previous agreements and understandings between the parties, and therefore avoids the risk of any agreement made orally or in writing prior to the execution of the written contract being interpreted as being part of the legal contract between the parties.
• Force Majeure: A clause which prevents the parties to a contract from being liable in the event that circumstances outside their control stop them from being able to undertake their obligations under the contract.
• Interpretation: That provides precise meanings to the terms of contract.
• Law and Jurisdiction: Determines the law governing the contract and jurisdiction.
•Limitations on damages: This sets a cap or otherwise limits the types of damages that may be awarded in a contract dispute.
• Notices: Provision indicating how to communicate the parties.
• Set Off: Clause that prevents one party from deducting money owed from money payable to the other party, in other words giving themselves a ‘self-awarded discount’..
• Severance and Invalidity: This will enable the parties to eliminate a clause or word that is illegal, invalid or unenforceable.
• Terminations: Which establishes the ways in which the contractual relationship may come to an end.
•Warranties: These are promises and assurances made by each party regarding various contract obligations.
All these stipulations are usually placed at the end of the contract to regulate standardized questions, so the contract will have a number of specific clauses depending on the subject and boilerplate clauses under the heading "General", "Other matters" or " Miscellaneous.
Ana María Riera Alajarín, lawyer in Pedrós Abogados.