Why I stopped drafting contracts like fortresses

A senior lawyer reflects on their approach to drafting contracts, highlighting the dangers of creating overly protective agreements that may not hold up in court. They argue that being protective and being enforceable are two different things, and that a one-sided contract is more likely to be scrutinized by a judge. The article emphasizes the importance of striking a balance between protecting clients' interests and drafting contracts that can withstand judicial scrutiny.

The practice of drafting contracts as 'fortresses' has become all too common in Indian law, with lawyers often prioritizing protection over enforceability. This approach may provide short-term comfort to clients, but it can ultimately backfire when the contract is tested in court. The author of this piece, a seasoned lawyer, shares their own experiences and insights on why they have shifted away from this approach.

In India, contracts are governed by various laws, including the Indian Contract Act, 1872. Section 23 of the Indian Contract Act is often cited as a key provision in contract law. However, the author's critique of over-protective contracting practices suggests that there may be a need for greater awareness and nuance in this area of law.

The author's argument is rooted in their observation that courts do not simply rubber-stamp contracts once they are signed by both parties. Rather, judges will scrutinize the terms of the agreement to ensure that they are fair and reasonable. This means that overly one-sided contracts may be more likely to be set aside or interpreted against the party who drafted them. The author suggests that this is because courts prioritize fairness over mere consent. By drafting contracts with an eye towards enforceability, rather than simply protection, lawyers can help their clients avoid costly disputes and ensure that their agreements are respected by the courts.

In conclusion, the article highlights the importance of striking a balance between protecting clients' interests and drafting contracts that can withstand judicial scrutiny. By adopting a more nuanced approach to contract drafting, lawyers can help their clients achieve their goals while minimizing the risk of costly disputes. As the author notes, being protective and being enforceable are two different things – and it is time for lawyers to focus on creating agreements that truly stand up in court.