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MJDs Contract Warnings - courtesy of Perlweekly

by ww (Archbishop)
on Mar 30, 2015 at 12:10 UTC ( #1121809=perlmeditation: print w/replies, xml ) Need Help??

30 Mar 15.

MJD's blog entry (and the one linked there-from) on contracts (including such contracts as NDAs): http://blog.plover.com/law/contracts.html. Link comes from Perlweekly #192.

Unless you keep a high-powered lawyer on retainer, I strongly suggest you read both pieces! Besides, they're fun to read.

Replies are listed 'Best First'.
Re: MJDs Contract Warnings - courtesy of Perlweekly
by Anonymous Monk on Mar 30, 2015 at 13:06 UTC

    I've found it useful to keep in mind that a contract should optimally treat both parties equally. If a contract gives one party a right, a restriction or a requirement, then it should treat the other party similarly.

    One situation I've been in is this: a contract required me to reduce the agreed upon fee if my work times dropped significantly below the estimates, but didn't include a clause on what happens if my work times significantly exceed the estimates.

    Another one: A contract's NDA required me to delete all copies of the source from my machines after handing the project off, but still made me liable for defects for a period of time after the contract ended. How would I have proved that the defects were caused by modifications made by the client instead of by me?

    Any clause that creates inequality, like in these cases only protecting one party, should be questioned. Remember, the contract existst to protect you, too.

    (Sure, sometimes one party will be in a stronger negotiating position. But you still don't need to heel to everything.)

      Oh, and by the way, interesting solution to the NDA situation, since the client insisted on both clauses: we added a clause saying that at the end of the contract, we would sign a paper with the current Git SHA checksum, and any defects would have to be present in that version for me to be liable for them.

Re: MJDs Contract Warnings - courtesy of Perlweekly
by ambrus (Abbot) on Mar 30, 2015 at 20:53 UTC
Re: MJDs Contract Warnings - courtesy of Perlweekly
by chacham (Prior) on Mar 31, 2015 at 13:35 UTC

    I worked for a small company that obliterated its IT department, then contracted me to implement a new project. They handed me a contract which i edited liberally before signing it. The owner, who knew me but we had little do do with each other, asked why i was doing this to a standard contract. I mentioned how ridiculous some clauses were, and he resigned to it and let it go. I assume he never meant to execute any of the clauses. In fact, i get the feeling he never even read it. Nonetheless, if i had started a successful company that was even remotely related to their business, i'm sure he would have reviewed it with a fine-tooth(ed) comb.

      Hello chacham,

      Re: Your consideration of jdporter’s reply as “abusive”: I don’t think it was intended as such. It’s a paraphrase of an (in)famous quotation from Mark Jason Dominus.

      And the point (as I understand it) is valid, because legalese, like Perl or any other language, has its own technical vocabulary and conventions, and so is often opaque to those of us not fluent in its use.

      <anecdote>
      When my mother sold her house, we took the contract to a solicitor who specialises in this area of the law. He read through the contract and removed a couple of clauses which, he said, were not in our interest. The point being that we found out what those clauses actually meant only when he explained them. On our own, we would have had to leave them in precisely because we had no idea of what they actually entailed.
      </anecdote>

      So the point is this: when you “edited liberally” the contract to which you refer, you were in danger of (a) using terminology which didn’t mean what you thought it did, and (b) missing gotchas in the contract which you didn’t recognise because they were buried under a weight of legalese. (This is assuming you are not yourself a trained lawyer, of course.)

      Which is, I think, all that jdporter intended to convey.

      Athanasius <°(((><contra mundum Iustus alius egestas vitae, eros Piratica,

        My edits were redactions of sections saying what i could not do for 6 or 12 months afterward. I'm relatively sure there was no other intention.

        I went back and forth on considering the reply. At first i thought someone else would consider it, and was surprised when it wasn't. Considering a post when i am the recipient seems tacky. Ultimately, after realizing he has an unpleasant attitude (for example, the enlargement of "fail") i figured he either has it in for me or just a jerk to everybody. I considered it to let the people decide, even though he is a well-known person here and the chances of his post being removed was small.

        I do appreciate your explanation. However, as it needed to be explained, it wasn't quoted, and includes an expletive and epithet, i still think it is not an appropriate post.

      You can't just make shit up and expect lawyers to know what you mean, retardo.

      Update: For those who don't get my allusion: it is to a famous quotation by mjd himself; here is the origin.

        Are mentally disabled people worthy of derision, as the quote seems to imply?
      Keep in mind sometimes they don't read the contract. I had someone offer me a contract once and I read it and immediately declined to do the work because it was clear the other party hadn't read it. (The contract, among other things, required that I build the project to all applicable building codes. Evidently it was for a general contractor, not a project contract.)
Re: MJDs Contract Warnings - courtesy of Perlweekly
by sundialsvc4 (Abbot) on Mar 31, 2015 at 12:59 UTC

    Well, the moral of this story is that you should “have a lawyer on retainer.”   Even if you are “just a lowly programmer,” if you are in business, you will be asked to sign things, and you need to have your attorney look over everything that you are being asked to sign, before you actually do.   You might be God’s own gift to [Perl] programming, but you know nothing about the law ... and you are always, always dealing with others who do.   The contracts that you issue to others, should also be written by your attorney.

    Yeah, s/he will charge you several hundred bucks for expertise.   So do you.   (They’re all deductible business expenses, anyway.)

    And:   there is always “time to smoke it over,” even though “time is of the essence.”   If someone hands you a piece of paper and insists that “it must be signed today” ... don’t.   Take it home, read it over, and then, “call Tom, and tell him to start the clock again.”

    You might be in business for years and “nothing happens.”   But “all of those blissful occurrences, goody for you,” are not why you need a lawyer.   The day will come . . .

      Yes, 'the day will come...' and yes, 'there is always “time to smoke it over,”....'

      So I consider some of sundialsvc4's comments meritorious but his opening inference, ' the moral of this story is that you should “have a lawyer on retainer.”' and the cost argument in the second para are -- IMO -- wrong and wrong-headed.

      OT but perhaps informative: my own mindset keeps me trying to balance MJD's stance and my own "kill all the lawyers" rage. I'm convinced that today's business culture (at least in the U.S.) is wasteful for both sides of many ordinary transactions because business owners and managers are pushed into liability-phobia as much by fear of shareholder suits (fomented by unscrupulous lawyers) as by the prospect of actually incurring liability.

      But back to an on topic reply, two points:

      • most lawyers I know who accept retainers still charge their standard (or near-their-standard) hourly rates. Retainers are NOT full payment for an open-ended service deal.
              and...
      • Having a lawyer on retainer is NOT a minor expense for many of the likely readers, including many of those whose income from dev- or programmer-work is merely a nice-to-have extra or at a scrape-by level. At that level of income, tax-deductibility counts for less than constraining expenses.

      IMO, for those in that situation, most of us need only make a point of KNOWING a lawyer who's competent to handle contractual language but should then pay for professional services only when necessary and only when confronted with a new issue -- be that allegedly innocuous language upon which a client insists or a circumstances which moot my next suggestion.

      That leads to an alternate approach: HIRE a lawyer to draft a tightly drawn and narrowly scoped template; then fill in blanks such as the prospective-client's name, and present that as YOUR basis for negotiations. Of course, be ready to go back, paying an hourly rate, for help if there really must be legal details specific to the work.

      Yeah, some prospects will be unwilling to work with you on that basis, but a sufficiently narrow offering that specifies the scope of work may just persuade the prospective buyer to save attorney-fee expense at that end... and save you the annual cost of keeping an attorney on retainer.

        Some lawyers are more than just people that get paid to extricate you from jail a tight spot:   they are business counselors who have a lot of experience in business negotiations.   Used wisely, that sort of thing can be the difference between a profitable software consulting business and “scrape by / beer money,” because a good expert in the field can help you see what’s worth pursuing and what’s likely not to be worth the time and/or the risk.

        My lawyer is like that.   I pay a periodic minimum fee for access to his expertise:   “use it or lose it.”   If he has to spend more time, he tells me in advance.   Since I am not buying his priority time, sometimes I have to wait a little bit.

        The “customarily obvious only in hindsight” point is to structure one’s business dealings in advance such that they are both profitable and protected, and go into any deal fully-informed.   (Or, make the judgment call not to enter into the deal at all.)   You can’t avoid what you don’t know to avoid.   Therefore, engage someone who does.   As an expert yourself, hire experts.

        If you literally cannot afford an attorney, I definitely recommend that you read the various books by the late Hermann Holz (nee “Herman Holtz” or various other Americanized spellings) about consulting contracts.   No, I still return to:   “find a way to afford an attorney,” as well as other qualified business advisors.   Given that you are in this business, you are in the business of providing expensive(!) professional services, and/or of providing work-products with a very large inherent-liability risk.

      Hi sundialsvc4,

      I understand your point, but I still disagree to a large extent with your conclusion.

      MJD's point was to say: "Use your mind, be reasonable, don't accept to sign anything." And I agree with him. Should I have a lawyer on retainer? I doubt.

      To clarify, possibly unlike you, I do not really own a business. I do not have any employees. I am just a freelance IT consultant, working essentially full-time for a tier-one telecommunication operator (although, technically, this telco is my end client, I am billing my services to an intermediate IT service provider).

      I have an accountant on retainer. Although I passed an MBA and have some decent knowledge on accounting, I prefer my accounts and professional tax returns to be prepared by a professional accountant. She can do it much more efficiently that I could, so I should better spend my time working for my client.

      But do I need a lawyer on retainer? Probably not. Before I completed my CS master's degrees (one in computer science and one in software engineering), I was a translator for a famous law firm (for 10 years). I think that I understand legalese jargon well enough to be able to understand the consequences of an agreement.

      Alright, my profile might be untypical, but I think that reading a contract with good sense should probably enough in many cases. And I think that this was essentially MJD's point.

      Je suis Charlie.

        To clarify, possibly unlike you, I do not really own a business.   I do not have any employees.   I am just a freelance IT consultant, working essentially full-time for a tier-one telecommunication operator (although, technically, this telco is my end client, I am billing my services to an intermediate IT service provider).

        Heh...   “Tom would whip you into shape, fairly quickly,” just as he once did me.   “You,” in fact, do ‘own a business.”

        1. Even if that business has exactly one employee ... you ... in the eyes of the law [in any civilized country ...], it does have one employee:   you.
        2. The “end client” of that [currently, “one-man band”] business is:   “the intermediate IT service-provider.”   (N-O-T “the telco!”)

        As Tom himself would be very quick to tell you, there are many forms of business in this world which consist of providing one of two things to “the rest of the world”:   either services, based on expertise, or counsel, also based on expertise.   On top of these two is a third set, which consists of providing an unpredictable amalgam of both.

        Well, as it turns out, a great many lawyers realize that they, themselves, properly occupy this “third set.”

        Therefore, they make it their business to seek-out and to educate other entrepreneurs, that they, in fact, properly occupy this “third set,” too.

        “Guess what ... Tom’s right.”

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