Published on August 1st, 2017 by Alan L. Sklover
Agreements without Page Numbers, Section Headings, or Paragraph Letters are Trying to Hide Things from You.
Observe and Learn:
I consider myself a “contracts lawyer” because I review, analyze and negotiate so many employment agreements, severance agreements, non-competition agreements, retention agreements, settlement agreements, partnership agreements, and the like, day in and day out. And I have been doing this for 35 years.
Time and again, I feel like I can “see through” the spirit of an agreement or contract that I have been given to review, and time and again, it turns out, ?I am correct in one important regard.
A long time ago I noticed something puzzling: whenever I reviewed an agreement that contained no page numbers, no section titles, and no paragraph letters (or very few), almost always I also noticed something else: each of these agreements without the usual “road signs” contained one or both of the following:
(a) a very dangerous or negative provision “hidden in the weeds,” that is, located in a place no one would look for it – as an example, a non-competition provision located in the middle of a paragraph about the address to send notices – or
(b) something very important to my client – like the amount of bonus to be paid him or her – for some unknown reason, completely missing.
“Gosh,” I say to myself, “why is “this” located “there?” Or, “How could they possibly have forgotten that?” “Who could make such an error?” And, finally, “Could it possibly have been a mere error or coincidence?”
This reminds me of the time when, years ago, my wife rearranged our clothes closets. My socks ended up in the night stand, along with my ties. My shoes were, for some reason, hung up where my suits used to be, and my shirts were spread out in two closets and one drawer. To this day, many years later, I still have never found my favorite pair of blue socks. Somehow, though, seeming miraculously, my wife ended up with a lot more closet space than she had before!
The lesson is this: be very, very suspicious of agreements that do not have page numbers, section headings, or paragraph letters (or very few of them), what I call the “usual contract road signs.” Whether by error or intention – and I now presume intention – drafting an agreement this way is not conducive to people understanding the meaning and effect of the agreement, unless they have read it very carefully, many times, with a “suspicious eye.”
Read these contracts extra carefully, and if it is a contract important to you – which they all usually are – consider a legal consultation, as well.
Is this just my imagination? I don’t think so. Derived from my intuition? Maybe. Based on my experience? Definitely. Becoming more common? Absolutely.
Observe and Learn.
© 2017, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.
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