“Research Handbook on Contract Design”
By Ines Curtius.
Contracts are the meeting of minds not words.”
Introduction
When the author heard about the publication of the book she thought: "If only this had been published 10 years ago! It would have saved me some time.”Why?
She could then have started earlier to:
1.) think about how one "has to" look at contracts and law from other than legal perspectives, and
2.) apply these insights in a practical way.
Review
The book consists of 5 main chapters that highlight the different stages of a contract (fromcraddle2grave) and its measurability.
It elaborates on how to consider and use methods from other disciplines, e.g. linguistics or design thinking. It also highlights new legal approaches that have developed from the multi- diversity of the research base. #proactivelaw.
Chapter 1
"Rethinking contract: From drafting to design".
In this introductory section, the authors provide an overview of why and how contracts and their management need to be rethought and possibly critically analysed. One of the outstanding chapters in this first part is the historical overview of contracts, their how and why. The other chapters in this first chapter introduce the leitmotif of the book:
“The need to take a multidisciplinary approach to working with contracts at all stages. “
Chapter 2
"Why contract design matters: rethinking the business and legal purpose and functions of contracts”.
The content and insights described in this chapter enable the reader to understand the academic and scientific background of why design as a science matters also for contract design.
Fascinating and novel insights are presented in the chapter on the "Functional Contract Framework " and its findings on research and evaluation models for contracts. It continues with the chapter on the combination of, among others, linguistic genres and the design of contracts. It describes how such a combination specifically takes lawyers into other dimensions of thinking about contract design. It explains how different genres as well as theories of linguistics are to be used and taken into account in order to improve the accessibility and understanding of contracts for their users. Users in this context are not only lawyers, but almost more important people/functions who work with and manage the content of the contract.
Chapter 3
"Designing better contracts for business and legal purposes”.
This 3rd chapter starts with a "big bang". The true story of Tuula Pere, a Finnish lawyer who has recently become familiar with innovation in law. She compares her experiences with the newly gained knowledge on contract drafting and shares her very interesting and insightful findings with the reader.
The other chapters offer practical and very well explained insights on how to better design and measure contracts.
Chapter 4
"When text alone is not enough: Visual contracts.”
The chapter describes how visual representations should be used in contracts, using real-life examples.
One of the most interesting chapters is the one on "Interpretation of images in contracts".
That is, how will judges react to visualization in contracts. This topic has been wildly debated by many lawyers and contract managers for several years, as it has been a recurring problem. And this ambiguity hindered the acceptance of visual elements in legal documents.
The chapter gives an overview of the various responses and suggests what other aspects around this issue need to be considered. Fortunately, all this is also done in an international context and in several jurisdictions.
Chapter 5
"What does the future hold? Designing for humans and machines.”
This chapter is again a very successful mix of theoretical and practical information. It touches on the issues discussed by legal academics, practitioners and legal tech providers when it comes to legal tech in general and its future. This is all about the increasingly important aspect of making legal documents more user-friendly. For example, it describes how and why a more technocratic approach should be combined with a linguistic one.
The chapter concludes with an insight into the future of lawyers, their clients and technology.
"We are interested in technology, but not those technologies that perpetuate or reproduce the overly legalistic and unfriendly contracts of the past" (Chapter 23, page 421). This statement is perhaps one of the most important in the book, as this idea is too often forgotten. Typically, fascination and enthusiasm for new technologies trump much more important criteria such as people and processes first, then the platform. The authors outline very well what the function of contracts should be, for example, and how lawyers can or even must redefine or expand their role. The book concludes by focusing on new, emerging technologies with a fair and reasonable amount of criticism and skepticism.
Summary
The book contains extremely valuable and practical information for anyone who uses or works with contracts, not just lawyers. As a research handbook, it provides a variety of excellent sources of information to support readers' research on the book's topic.
One small downer: the authors do not practice often enough what they "preach". Both the information layout and the language are sometimes very classical in the style of "academic research". Fortunately, this is interrupted in several chapters by visualization and a more UX friendly style.
Personal comment
In addition to the book "Legal Design Thinking" by Kohlmeier&Klemola,
https://www.wolterskluwer.com/de-de/solutions/legal-design , this is one of the best books I have read in recent years on the subject of innovation, law and contracts.
I have done a lot of research, reading, discussion and thinking on the subject myself in recent years. Pleasingly, this book has also provided me with a great deal of new inspiration, insights and results that enabled me as a lawyer to think and dream further, bigger and better.
Editors: Marcelo Corrales Compagnucci,
Helen Haapio and Mark Fenwick.
Edward Elgar publishing. Edited 2022
Paper and electronic version available
http://dx.doi.org//10.4337/9781839102288
#InesCurtis #contractdesign #bookreview
About the Author
🖤4law was the reason for Ines Curtius to study law. She wanted to design/translate legal content in such a way that the people whom the law is supposed to "serve" really understand it, in order to also strengthen trust in democracy.
Her main areas of expertise after 20 years of experience in the space industry are: international business law, CLM, design thinking, initiating and implementing innovative projects.
In 2022, she was a full-time carer for her husband. November 2022, she moved back into the legal field as in-house senior counsel for SonoMotors.com (http://sonomotors.com/). An OEM for solar e-cars, solar kits and also facilitating individual mobility while preserving what matters most, our planet!