Non-lawyers can draft contracts, too
Drafting a contract is basically not difficult and you don’t need to be a lawyer to do it; they simply have more practice.
The be-all and end-all: clarity
The «be-all and end-all» of contract drafting is whether the text is clear and understandable to all. A «worst case (scenario) approach» («Anything that can go wrong will go wrong») must also be a guiding principle. Contracts are not only concluded for sunshine, but especially for rain. Whether a contract is good or not is particularly evident when things go wrong. Therefore, when drafting a contract, one must ask oneself whether all worst cases and their consequences have been taken into account. For this reason, lawyers are perhaps better at drafting contracts, because they are confronted with worst cases on a daily basis and it is easier for them than for legal laymen to imagine what could go wrong … In my experience, chatbots are very good at exactly this: even lawyers cannot think of every worst case, but a chatbot lists in seconds what could go wrong in a contractual relationship. That makes it a worst-case partner for anyone who drafts a contract. Choosing which of these risks matter for the parties at hand remains your job. It must be remembered that the contract must be clear not only to the parties, but also to third parties, as often it is not those who negotiate and draft the contract who will later apply it. In the worst case, lawyers and judges will also be involved in the contract. Finally, from a purely editorial point of view, I find it important in practice that points that belong together thematically (e.g. on payment methods) are found under the same title or in the same clause.
In international contracts, clarity counts twice, because the parties come from different legal systems and languages: define the terms that are not self-evident, but only those: the long lists of definitions in many US-style contracts, down to «day means a calendar day», do not add clarity, they add pages and, worse, contradictions between the definition and the way the term is actually used; avoid the legal jargon of either system, agree on a contract language and, if the contract exists in two languages, state which version prevails in case of doubt.
Change management and escalation procedure
Since the initial situation for the conclusion of a contract, especially in long-term relationships, can change and this can lead to legal disputes, this circumstance must be taken into account in contracts with the agreement of a legal change management and an escalation procedure (see Chapter 05 International Litigation and Alternative Dispute Resolutions).
Exercise: what can go wrong?
Facts: A café in your country orders a custom-built espresso machine from a Swiss manufacturer. Price CHF 18,000; delivery in eight weeks; installation and training by the manufacturer; two years’ warranty; payment 50 % on order, 50 % on delivery.
Task: Ask a chatbot of your choice (Claude, ChatGPT & Co.): «List ten things that can go wrong in this contractual relationship, for either party.» Choose the three you consider most serious and let the chatbot draft one short clause for each. Then ask yourself: would you have thought of them?
In class: we collect the worst cases from the class; which ones did nobody think of?