Contracts tend to be mysterious at the onset, I asked the same questions many clients ask today: “what is a contract?” and “how can I write one?” As far as I understood before becoming a contract lawyer, I saw papers with many words on them, sometimes in fine print, and at other times caps-locked and bolded. Of the few contracts I read before law school, such as a website terms and conditions or a lease agreement, they were written in a way that was difficult to comprehend (a combination of legalese and boilerplate, in contractual jargon).
Lo and behold, I set out to write contracts as my professional focus. At the core of every contract is an agreement. The agreement need not be complex, even a simple “yes” response to the following question creates a contract: “Want to buy my bracelet for $5.00?” This example of a contract contains the required elements for a court to enforce it, even if it was stated orally and not written. The elements are as follows:
offer “Want to buy my bracelet?"
consideration, “for $5.00?"
and acceptance. “Yes.”
And so all contracts, at a baseline, should follow this rule. And most of them do.
Every Day Agreements & Clients
But as business transactions grow more complex, oral contracts no longer suffice, and certain laws (such as the statute of frauds) are triggered, requiring written contracts with specific sections. A first recommendation for new business owners: start with a written contract.
Most every day, complex contracts, such as software and product terms and conditions (think every checkbox or scroll-down to download and use apps), privacy policies (again for most apps and software), and employment agreements (required for most jobs) are written contracts. They often contain additional sections than the core of the agreement. Common sections include:
Recitals (announcing the parties of the contract)
Scope of Work/Product Description (general terms to lay out what is being done, or what is being sold/bought.)
Payment Terms (an often litigated section—the payment terms state the price for such service or goods.)
Representations/Warranties (these are certain promises made by each party as to the quality of the goods and services)
Disclaimers (these shield the drafter from potential lawsuits, such as “no guarantee” clauses or risk allocation clauses)
Limitation of Liability (if a lawsuit penetrates the above shield, these sections reduce the impact (i.e., reducing lawsuits to only the value of goods and services exchanged).
Dispute Resolution (these spell out the steps or rules to create order in a dispute. For example, some of these require mediation as a preliminary step to a lawsuit).
Intellectual Property (more relevant for software agreements and commissioned-work agreements—these sections detail who owns the intellectual property rights and whether such rights are carved out).
Termination (how one can exit the contract, e.g., “I want out!”)
Miscellaneous (often the catch-all section that includes important terms often repeated in most contracts). Contains: Modification clauses (how parties can change the contract’s terms); Governing law (often the state/country where the drafter resides); Choice of jurisdiction (often the county where the business/drafter resides); Entire agreement (a powerful way to exclude contemporaneous oral agreements, the best example being a car salesman making a number of promises regarding the car, but as soon as the buyer signs the purchase agreement, all those oral representations can vanish and the buyer is left with a car “as is”); Electronic signatures (these are important to protect against challenges to electronic signatures, such as using Docusign or a clickwrap); and so on.
So contracts are simple on the onset—they answer the question, what do the parties want to do in exchange for something and how? But they can be highly complex depending on the industry, legal regulations, risks, and transaction.
From my experience, websites that offer free templates are like providing someone a set of unfitting armor to go against an unseen opponent. Cautious clients just do not feel safe with a template and seek a lawyer’s review, much like they would like someone to teach them who they may face and if the armor fits just right (I more often use a castle analogy, but the armor works just as well).
When I began learning about contracts, I found few useful sources online. I turned instead to Michigan attorney practice handbooks on contract drafting before founding Wandzel Law PLLC. That study still guides how I serve clients today through insightful questions, precise drafting, and agreements fit to how each business operates. If your company needs contracts that do more than fill pages, that instead allocate risk, reduce disputes, and support growth, I invite you to schedule a consultation with Wandzel Law. We will build the foundation and lattice upon which you may grow.