Tweets by @Jeena_Cho and @CherylStephens alerted me to this item by J. Kim Wright. The title is Conscious Contracts: Bringing Purpose and Values into Legal Documents. Go ahead and read it; it’s short. I’ll wait.
You’re back? Good.
In her tweet, Cheryl asked me whether there was room in my world for this concept. Well, I find what Kim has to say pretty sensible. It’s a refreshing antidote to the rote contracting that’s on offer all too often, with lawyers trying to make the facts and the parties’ expectations conform to yesterday’s deals and the conventional wisdom.
In fact, pretty much my only reservation is the label she uses. It brings to mind Gwyneth Paltrow’s “conscious uncoupling” announcement. (Go here for Us Weekly’s take!) A lot of people like buzz-words. “Conscious” is one. So is “holistic,” another word that Kim uses. Me, I don’t like buzz-words. Usually they’re the stuff of fashion and not thought. When I hear buzz-words, I start patting my pockets and looking for the exit.
But labels are useful. Hey, I invented the labels “active drafting” and “passive drafting.” (See this extract of my article on represents and warrants for my most complete explication of those concepts.) In using the word “passive,” I’m not invoking inactivity, but instead a stultifying going-though-the-motions. I think that Kim is articulating a similar distinction but for contracts generally, not just drafting. She could just as well have referred “active contracting” and “passive contracting.”
But being skeptical of buzz-words shouldn’t blind one to the basic merit of what Kim has to say.
Ken,
How do you feel about the following, from #3 in the article:”The values conversations are memorialized in the contract because they are important to the creation of the relationship. They don’t just cover Who, What, How, and When, but also Why?”? This one scares me. It’s akin to incorporating recitals by reference into the operative portion of the document, which puts a loosely drafted gloss on the other operative provisions. But perhaps the intent of this point is only to suggest that the “Why” text goes in the recitals rather than left out of the document altogether.
-Vinny
It’s difficult to say without speaking with Kim about it, but I’m inclined to read it the same way as you.
Will this approach work when contracting parties do not share fundamental values? Or is one supposed to do business only with persons, firms, and nations with similar principles? I’m dubious.
I would treat the more touchy-feely stuff as optional.
I’m inclined to take it with a gag-me-with-a-spoonful. She’s got kernels of wisdom in there all mixed up with new-agey claptrap.
Yes to me it read like Deepak Chopra had turned his mind to the virtues of contract drafting.
The points in her article are not applicable to but a narrow range of contracts. If a nonprofit homeless group in DC wants to engage an artist to sculpt a modern creche image that substitutes homeless folks for the usual cast of characters, then everything she says would probably be apt. Oh….and make sure that the nonprofit receives an assignment of all copyright just to be damned clear.
While business transactions are generally entered in good will, they are fundamentally adversarial except for the central kernel of their mutual desire/need for the subject of the transaction that drives them together. The one party wants that gadget and the other party would much prefer selling the gadget than see it purchased from a competitor.
Beyond that, everything else is dealing with allocation of risk and obligations of the parties based on a range of contingencies. No amount of “purpose, values and dreams” will deal with any of that. And not to disparage the denizens of the contract department, but they are frequently ill-equipped to even send out the right version of a template, leave alone wrestle with “stated purposes, values and principles”.
I realize that this sounds an awful lot like “Get off my lawn!”, but really, she sounds nutty to my ears, bless her heart.
– Krumhorn
:-)