Commercial and tax barrister Joseph Manner shares how a confluence of factors presses lawyers to perform
Contract law is always evolving, and with the business world moving at a brisk pace, there’s even more necessity now for legal professionals who are masters in this field.
“Contracts are the life blood of commercial transactions. The law surrounding contracts is constantly evolving due to both the proliferation of legislation which impacts the form and effect of contracts, and the rapidly evolving environment in which commercial transactions are occurring in the real world,” says Joseph Manner, who will chair the Contract Law Masterclass this year.
The commercial and tax barrister says that legal regimes reflect the growing appreciation for how lopsided negotiations can be.
“The expansive and ever-proliferating body of contract law exhibits an increasing recognition of the disparity of position, knowledge and bargaining power of the respective parties to agreements. This is particularly evident in the legislative protections afforded individuals and small businesses as parties, and in respect of standard form contracts, which display very little of the common precursors to typical commercial agreements, such as bespoke terms emanating from rigorous pre-contractual negotiation,” he says.
This, coupled with the need for quick conclusions to deals, presents a unique challenge to the professionals negotiating the transactions – lawyers included.
“As the speed of commercial transactions continues to accelerate by use of technology and organic business growth, one can view the anticipated confluence of expedience at the expense of purposeful and conscious agreement of the parties by way of boilerplate and speedily transacted agreements”, he says.
“The arising issue is then clear – how to retain a proper degree of consensus ad idem or ‘meeting of the minds’ without stifling the essential characteristics of speed and efficiency in the commercial world. By grasping and addressing these issues, legal professionals may expertly advise clients at the crucial drafting phase of such agreements, obviating costly litigation at a later stage,” he says.
Manner, who regularly appears in the Magistrates, District, Supreme, and Federal Courts in commercial matters, advises fellow legal professionals to pay close attention to the drafting of contracts.
“The drafting phase is no doubt the critical juncture at which the respective risk, obligations and liabilities of the parties must be appropriately allocated. Therefore it is crucial that all practical transactional eventualities must be considered at the drafting stage so that the flow of risk and liability be maintained throughout the course of the transaction, and that a contract may operate as a surgical tool and not a blunt instrument in doing so,” he says. “This pre-emptive investment of time and consideration in drafting may thereby reduce the risk of expensive litigation occurring at a time when it will be most commercially damaging to the parties by eliminating to the greatest degree possible the uncertainty and unwarranted risk which may arise as a result of poorly drafted agreements.”
The Contract Law Masterclass 2019 will discuss some of the most pressing issues in contract law today. The loaded agenda includes successful negotiation strategies, legal ethics in contract negotiation, and Australian Consumer Law updates.
Reserve a seat today or get the most value with a Team Pass, which secures four seats for the price of three. To be held at the Westin Sydney on 28 February, the masterclass allows all legal practitioners to claim up to 6 CPD points.
Joseph Manner
