This was one such time.
I persisted by simply saying that if there was anything “anything” bothering him at all, he should consider asking for my opinion. I might be able to help if he would share what it is.
OK. He agreed. He had started a small IT solutions company a couple of years back and had fallen out with one of the early suppliers who also happened to be a lawyer.
The gist was that for about three months they had traded emails that had descended into threats of legal action. He showed them to me.
I suggested they talk to each other on the ‘phone but they had tried that and he said it didn’t work. They just ended up shouting at each other and the verbal threats had all been confirmed to each other in yet more emails.
Through all the legal jargon and quoted clauses, I thought the solution was actually quite simple. I suggested a possible solution to my man. It wasn’t completely what he wanted but he could live with it if the other guy could.
Well, there was only one way to find out; let’s ask him. Rather than me getting involved, I proposed that I should write the email. I did. He sent it. The other chap agreed, subject to my man doing something first. Again, it was something he could live with and not all that important to the overall scheme of things, so he agreed. Email to confirm. Job done. The relief on my mans face was almost palpable.
He had fretted about legal action, had copied in litigation lawyers in emails to the other side (to show how serious it was getting) and all that was doing was winding up the other guy.
A fresh pair of “commercial” eyes on things and it was all over and agreed probably in the time it’s taken you to read this.
I didn’t really analyse it until now but I have seen similar situations before.
As lawyers we sometimes get totally caught up in the legal aspect of business. This clause means this or this clause means that and I’m determined that you (on the other side agree or acknowledge that fact)
The thing that makes things work in business is not the absolute legal meaning of an agreement, but does the agreement work for both sides? It did when it was signed but things have moved on and something that has happened has caused a new look at a clause through a different pair of eyes.
A written agreement after all is there to smoothe out the path to commerce, not to stop it or be a burden. It should not BE the business, merely a part of it.
The legal solution to the problem would have been litigation. The cost in time and money would have been silly money.
The commercial solution was there for all to see but the letter of the law had blindedthem from seeing it.
Life is too short. If you can’t find a solution, let someone else take a look at it. Get a second opinion from a non-lawyer. Someone with commercial experience and nothing to lose or gain. You might not like the answer…but I bet it works!