In negotiations, I would often be asked by sales and procurement to include wording that a section (usually pricing) can be changed by mutual written agreement.
I am reminded of a senior attorney I worked with years ago. He would shake his head in disgust at this type of language.
Isn’t it obvious?
If you want to change a section in a contract, both parties need to agree. And, most contracts already have a non-variation clause (ie. any change must be agreed by both parties in writing), making the request redundant.
As lawyers, we are trained to write only what's necessary and to avoid repetition.
So, when you get this request from your client, what do you do? Agree, knowing it has no real impact? Or push back and use it as a chance to educate a client about contracts? 🤔
From my experience, sales and procurement do not stay up at night thinking about non-variation clauses. They are not too interested in an explanation about an edit that has no impact or poses no risk.
BUT for them, “repetitive” language like this can be an important gesture to a customer to help close a deal, without giving a real commitment.
Ultimately, as a commercial lawyer, the mantra is to know when to be pedantic and when to be practical. And come EOQ, this is a critical skill.
Personally, I tend to like accuracy, but I am also aware of that about myself.
So I am routinely calming my pedantic urges to make sure that I am being practical too. Even when there is no risk, I will still have a nagging feeling that something is not right but that is more about me than serving the client!
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