While I was planning for my recent trip to Geneva, I found myself exchanging emails with Jacques de Werra, professor of contract law and intellectual property law at the Law School of the University of Geneva.
Jacques recently published in Jusletter his article Swiss Commercial Contracts: Review of Recent Case Law. I was uncertain how relevant I’d find it. In particular, caselaw in which courts do their best to attribute meaning to confusing contract language generally has little to say about how to draft clearly. Here’s what Jacques had to say about that in an email to me:
Ken, I recall your saying you’re not in the business of cleaning up messes. Because my article deals with contracts that ended up in a fight, you might think that means it isn’t relevant to you or your readers, but I have a slightly different take, for three reasons.
First, I think it’s always good for people who draft and review contracts to be reminded how people can get into fights and how the fights could have been avoided. For example, be clear how many shares are to be sold in a share purchase agreement! That was the issue in one of the cases I discuss in the article.
Second, sometimes people get into fights not because of poor drafting but because the relationship between the parties to long-term contracts has evolved negatively over time. That’s what happened in some of the cases I discuss, namely those dealing with immediate termination of exclusive distribution agreements.
And third, the cases discussed in the article offer a civil-law take on classic contract-law issues, such as the effect of a no-oral-modifications provision. It can happen that parties from common-law jurisdictions are unpleasantly surprised to find that conduct that is unobjectionable in common-law jurisdictions might land them in trouble in civil-law jurisdictions.
So your readers might in fact find my article of some use. I’d be happy to discuss any of these issues.
I reckon I’m convinced! Particularly if you work with contracts governed by Swiss law, you might want to check out Jacques’ article.