English law, in fact any form of law, can seem very strange and frustrating at times, largely due to uncertainty.
Clients tend to come to lawyers seeking certainty. Especially when it comes to contracts.
However, sometimes, it isn’t possible to be as certain as we would like because the law will interfere in certain types of contracts and situations, especially where there is there is inequality of bargaining position or the risk of undue influence.
With certain types of contracts it is already necessary or commonplace for the “underdog” to be independently legally advised, often at the expense of the other party – 2 common examples of this are employment settlement agreements and where there is non-owning occupier and a mortgage lender.
The upshot of the above is that, with may situations, a larger business or a business dealing with consumers, has to be wary of drawing up a contract which is blatantly one sided, or includes disclaimers or limitations, and that business should also be wary of possible problems down the line.
However unfair it may seem, bearing in mind the above and the fact that the same principles apply to other types of situations, is there a case, even where it’s not required or standard practice, to extend the concept for other types of contract ?
A prime example of the above might be for employment contracts. Many employers do not realise that it is common for an Employment Tribunal or court to imply terms into contracts of employment or to otherwise vary the written terms and conditions. this is on then basis that the employer has the advantage in most cases when the contract is entered into. However, if the employee received independent legal advice, before signing the contract, this might perhaps make it less likely that the employee could argue that he or she didn’t understand the implications. Employers commonly fall foul of thinking that restrictive covenants in employment contracts will be enforceable but in many cases such clauses are not upheld or only partially upheld. The same point may apply to the ever more important issue of confidentiality and data protection. These are perhaps classic instances where, if an employee had received independent legal advice, it would be harder to contest a claim by the employer later.
Just my thoughts to kick off 2014 – what do you think ?
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