Like Bond himself (or Bourne if you prefer your spies a bit rougher round the edges) we have all been tempted to do things our own way, be a bit maverick and just give it a go. However, when it comes to your legal papers we would urge against any temptation to use a combination of your own ingenuity and internet “inspiration”.
I tried to use the internet myself recently to find out others’ views on a point of law. It was an unusual and – as yet – still fairly untested point. What I discovered was that search results cannot be relied upon, particularly if you are not careful to ask the question that you ought to be asking. I started to read only to discover the first results that came up related to Canadian law!
The same problems apply to trying to adapt “cookie cutter” contracts that you get from internet searches. You might find that they are for organisations registered in another country, the laws of which differ quite substantially from Scots law. There might be references to laws that are not applicable here – or worse – it omits things that you are obliged to mention. The document could also be riddled with meaningless legal terms.
The main issue with such papers is the sheer scale of them; particularly those from US sites. In Scotland there is a movement towards plain, simple (English) drafting. This is intended to make it easier for all to understand – particularly the consumer. This also makes life easier for the seller/service provider too, because there is less chance of the term being considered unenforceable for lack of clarity or being hidden in the depth of pages and pages of terms and conditions. See my blog on the Consumer Rights Act guidance.
You should give careful thought to the type of content that you want in your terms and conditions of sale or other contracts. Consider the risks that you want to protect against. The key is to tell your adviser this and leave the drafting to them to avoid your contracts being obscure, meaningless and unenforceable.
The writing on the wall otherwise is likely to spell commercial disaster.
Please speak to Alan Stalker on 01383 721621 if you are having problems drafting your contracts.
