Thu 16 Apr 2020

Cromwell, contracts and (almost no) coronavirus

I am not going to mention the "C" word in this blog, other than to say that I have been taking the opportunity to immerse myself in some chunky books during lockdown.  

One series which has given me immense pleasure is Hilary Mantel's books about Thomas Cromwell.  Along with the Tudor intrigue and machinations, this quote got me thinking along more legal lines, where Cromwell cites some contractual advice from his mentor:

"Wolsey always said that the making of a treaty is the treaty.  It doesn't matter what the terms are, just that there are terms.  It's the goodwill that matters.  When that runs out, the treaty is broken, whatever the terms say."[1]

That got me thinking about the agreements and contracts that I frequently draft.  What matters more - the terms, or the goodwill? 

The terms are important…

Most lawyers will naturally recoil in horror if you suggest that the terms of a written agreement don't matter.  Lawyers are trained to write and draft in a precise and comprehensive manner, leaving no possible loopholes - and indeed, elsewhere in the novels, we see Thomas Cromwell doing exactly that.  Lawyers know all too well the disastrous consequences that can result from vague or ambiguous wording.  You might know exactly what you meant when you wrote a particular phrase in an agreement, but if the other party thought something different, and an objective Judge reviewing it in two years' time thinks something different again, then that will undoubtedly cause problems.

Lawyers are also trained to think round the corners in any negotiation - not only what will happen if everything goes smoothly, but what if this goes wrong, or this, or this…  One thing that lawyers can often add to a negotiation is putting in place well-thought through caveats and fall-backs. 

… but so is the goodwill

Having said all of that, there is a point where goodwill can become necessary, even in the most tightly worded contract.  If someone is determined to act in bad faith after a deal has been done, there is a limit to how much that can be protected against by mere drafting.

Goodwill and the intent behind an agreement can be particularly important in matters relating to children.  Any agreement about childcare arrangements, for example, is always subject to change, as the child's circumstances changes.  What was in the child's best interest when the parties made the agreement may no longer be in their best interest a few months down the line.  Where two parents are very much at odds about what is best for their children, and there is simply no goodwill between then, it is very difficult to come up with any agreement or indeed Court Order which is going to work in the longer term.  The most detailed of stipulations and provisions about childcare arrangements will only work if both parents make an effort to ensure that happens. 

What is therefore very important in that type of situation is to get an agreement in place that all parties can buy into and which they actually want to make work.  Often a very good forum for making such an arrangement can be mediation, where the parties are directly involved in listening to each other's concerns, and working out a way forward, rather than an arrangement which is imposed upon them and which neither might want. 

Tight drafting, or overall goodwill?  Now, as in Tudor times, it's best to have both. 

[1] Wolf Hall, by Hilary Mantel, page 391.

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