Monday, November 28, 2011

Joint Drafting

In many jurisdictions, how a court interprets a contract will follow what is referred to as the rules of contract construction. One of the most common rules is that in the event of an inconsistency in the contract, that inconsistency will be held against the drafter of the agreement.

What happens when an agreement is heavily negotiated with both parties having drafted sections of the agreement? When someone else is also doing the drafting, you don’t want to have any inconsistencies in their language be held against you. To deal with this people include what is called a Joint Drafting provision.

A joint drafting provision is a very brief statement of intent by the parties. It will say that the agreement was jointly drafted by the parties and in the event of a dispute you do not want the court to follow the rule that inconsistencies will be held against the drafter. By inserting such a provision the court would follow the intent of the parties. Rather than find against the drafter, they would determine the intent of the parties and would interpret the contract and any inconsistencies in the contract according to that intent.

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