Contract drafting (or contract jurisprudence ) is a cautious practice that serves the implementation of the objective of a legal subject and is intended to secure , bring about , change or prevent a life situation through a contract .
While decision-making jurisprudence deals with the problems of subsuming a life situation of the past under legal norms (in particular methods of interpretation to fill gaps and treatment of value change ), the drafting of contracts is future-oriented and deals with the method of legal design (creativity) of facts with the core problems of Forecast and the selection of the relevant regulatory complexes. Eckart Rehbinder defined the drafting of the contract as "helping a client to make a decision ... about the structuring of a living relationship with the means and within the limits of law".
Contract design plays an important role in everyday life. The legally secure drafting of contracts is the responsibility of lawyers such as lawyers , tax advisors or notaries (for notarization ) in the context of legal advice . But laypeople also try to draft contracts, but run the legal risk of not considering all the legal consequences and thus getting into legal disputes with the other contracting party or third parties . In business and tax law in particular, lawyers deal with the task of finding a solution that is appropriate to the interests of difficult issues by drafting contracts.
Contract drafting means that a contract is drafted, i.e. is created through a creative creative process. The designer must first examine which regulations are necessary to achieve the objective. The contract must be complete , must not have any internal contradictions , must not neglect any legal questions , and the legal consequences of fulfilling the contract must be fully in line with the objective.
The contract is drafted in four steps:
- Determination of the regulatory or contract objective: The objective (main purpose) and interests (secondary purposes) of a contracting party must be reflected in the contract.
- Need for regulation : The legal situation must be clarified, in particular all relevant areas of law such as labor law , private law , tax law or special laws affecting the contract must be taken into account.
- Implementation of the need for regulation through legal structuring options as well as the determination of legal limits. An appropriate consideration of the interests of the other contractual partner must be taken into account (balance of interests).
- Formulation of the contract : A syntax that is understandable for the contracting parties must be used, which avoids contradictions or room for interpretation.
Legal errors occur when the contracting parties overlook, misjudge or misinterpret legal norms in the formulation (loophole). Undiscovered legal errors represent a contractual legal risk. A contract can be drawn up as a letter ( business letter ) or in the form of a document .
Authored by legal layman contracts with legally complicated content should by law firms , lawyers or accountants on adequacy ( english appropriateness ), accuracy ( English accuracy ) and completeness ( English complete ness ), legality ( English legality ), validity ( english validity ), efficacy ( English legal efectiveness ) and enforceability ( English enforceability ) are checked.
Anyone who takes a guarantor's position with regard to his professional or economic position or his status as an expert (such as lawyers and auditors) can be liable to investors for "negligence in contract negotiations if they create an act of trust through their external involvement in the issue prospectus " .
The contract can be structured in:
- Private planning:
- Design of life issues,
- for the future,
- by the means and within the limits of law;
- a creative activity:
- dynamic, future-oriented view of the facts,
- instrumental view of law;
- a specific procedure (process), consisting of:
- Information acquisition,
- Instruction on legal consequences and dangers,
- Negotiation management or negotiation mediation,
- Formulation of draft and contract,
- Assistance with contract execution and processing.
The “requirement of the safest way” is intended to ensure legal validity. In addition, economic thinking, cost-effectiveness of the design and their practicability should be taken into account when drafting contracts.
For contracts all contract types are suitable, in particular contracts , service agreements , marriage contracts , inheritance contracts , partnership agreements , purchase agreements , leases , brokerage contracts , leases , contracts in property law , donations , government contracts or work contracts . Although these types of contracts are largely subject to a certain area of law (e.g. employment contracts under labor law), other areas of law can also affect them. Certain types of contract are mandatory to be notarized such as marriage contracts, partnership agreements or land purchase agreements and therefore leave little room for maneuver for the contracting parties.
The criteria for drafting the contract are safeguarding interests, purpose orientation, legal knowledge and application of the law, the requirement of the safest way, suitability for the future and understanding of the economic context. According to Carsten Kunkel , the core tasks involved in drafting contracts include realizing the purpose, safeguarding interests and avoiding conflicts, gathering information as well as future viability and flexibility; the “requirement of the safest way” should also ensure legal validity.
- Abuse of legal structuring options (tax law)
- Carsten Kunkel : drafting the contract . A methodical and didactic introduction . Verlag Springer, Berlin Heidelberg 2016, ISBN 978-3-662-48430-2 .
- Abbo Junker / Sudabeh Kamamanabrou: drafting of contracts. 2nd edition, Verlag CH Beck, Munich 2007, ISBN 978-3-406-55265-6 .
- Gerrit Langenfeld: drafting the contract. 3rd edition, Verlag CH Beck, Munich 2004, ISBN 3-406-42532-1 .
- Eckard Rehbinder: Contract drafting. 2nd edition, Verlag Luchterhand, Cologne 1993, ISBN 3-472-01535-7 .
- Gerald Rittershaus / Christoph Teichmann: Legal drafting of contracts, methodical instructions for case processing during studies. 2nd edition, Verlag CF Müller, Heidelberg 2003, ISBN 3-8114-2210-3 .
- ↑ Eckart Rehbinder, The role of contract design in the civil law teaching system , in: AcP 174, 1974, p. 285
- ↑ Lutz Aderhold / Raphael Koch / Karlheinz Lenkaitis, contract design , 2018, p. 21
- ↑ Lutz Aderhold / Raphael Koch / Karlheinz Lenkaitis, contract design , 2018, p. 24
- ↑ Carsten Kunkel, contract design: a methodical-didactic introduction , 2016, p. 61
- ↑ BGHZ 77, 172
- ↑ Eckard Rehbinder, The role of contract design in the civil law teaching system , in AcP 174, 1974, p. 285
- ↑ Lutz Aderhold / Raphael Koch / Karlheinz Lenkaitis, contract design , 2018, p. 81 ff.
- ↑ Lutz Aderhold / Raphael Koch / Karlheinz Lenkaitis, contract design , 2018, p. 31 ff.
- ↑ Carsten Kunkel, contract design: a methodical-didactic introduction , 2016, p. 50 ff.