This document provides an overview of contracts and contracting. It defines what a contract is, gives examples of common contracts like credit card agreements and online terms of service, and outlines the basic elements of a contract including offer, acceptance, and consideration. The document explains that contracts create legally binding agreements between two or more parties and discusses important concepts like mutual obligations and promises. It also provides guidance on drafting contracts and includes common contractual terms and provisions that are often negotiated, like warranties, indemnification, and liability.

1. CONTRACTS 101
SPARK LAW & ORDER
BY
RUSS BROWN
R.D. BROWN, PLC
RDBROWN@RDBROWNLAW.CO
M
Negotiation and Drafting

2. What is a Contract
 a: a binding agreement between two or more
persons or parties ; e spe cially one legally
enforceable
 b: a business arrangement for the supply of
goods or services at a fixed price
-Merriam-Webster

3. Have you agreed to a contract?
How many people think they are party to a
contract?

4. Examples

5. Examples
 Credit Card Agreement

6. Examples
 Credit Card Agreement
 Signed agreement related to a job

7. Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account

8. Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account
 An agreement to buy something from a friend

9. Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account
 An agreement to buy something from a friend
 Buying something from a store

10. Facebook terms and conditions
 Switch to Firefox

11. Civil Legal Duties

12. What does it mean to Contract?
Contracts are about:

13. What does it mean to Contract?
Contracts are about:
 Bargaining

14. What does it mean to Contract?
Contracts are about:
 Bargaining
 Coming to an agreement

15. What does it mean to Contract?
Contracts are about:
 Bargaining
 Coming to an agreement
 Being willing to be legally bound to your side
of that agreement, as long as the other party is
bound to theirs

16. Elements of contracting
 Offer
 Acceptance
 Consideration

17. Elements of contracting
 Offer
 Acceptance
 Consideration
 These are the basic elements, but contract law
can get a lot more complicated

18. Offer
 An offer is an invitation to make a contract

19. Offer
 An offer is an invitation to make a contract
 Examples?

20. Offer
 An offer is an invitation to make a contract
 Examples?
 Displaying a take it or leave it contract online
 Bidding on ebay
 Putting a price tag on an item in a store

21. Offer
 An offer is an invitation to make a contract
 Examples?
 Displaying a take it or leave it contract online
 Bidding on ebay
 Putting a price tag on an item in a store
 Offers can go back and forth (but don’t have
to) until…

22. Acceptance
 The point at which one party agrees to the
other parties offer
 Examples
 Clicking that you accept the online contract
 Winning an ebay auction
 Buying the item from the store

23. Consideration
 Generally, courts will only enforce a contract if
both sides are getting something.
 What each side gives the other is called
consideration.

24. Is this a contract?
In each of the following examples, ask yourself
if there is mutual consideration?

25. Is this a contract?
 You order a book of Amazon.com. Your credit
card is charged, but no book ever shows up.
 Was there a legally enforceable contract?

26. Is this a contract?
 You order a book of Amazon.com. Your credit
card is charged, but no book ever shows up.
 Was there a legally enforceable contract?
 Yes, you agreed to pay Amazon.com money
and they agreed to send you a book.

27. Is this a contract?
 Last year, your uncle promised you an iPhone
for your 18th
birthday. When you turned 18, he
gave you his old broken basic cell phone.
 Was there a legally enforceable contract?

28. Is this a contract?
 Last year, your uncle promised you an iPhone
for your 18th
birthday. When you turned 18, he
gave you his old broken basic cell phone.
 Was there a legally enforceable contract?
 No, while your uncle made a promise, he did
not receive any consideration in return.
Consideration has to be more than good
feelings.

29. Is this a contract?
 You signed up for a week long summer
basketball camp which cost $100. You paid
and went to the camp. When you got to the
camp, they just had you watch football movies
all day.
 Was there a legally enforceable contract?

30. Is this a contract?
 You signed up for a week long summer
basketball camp which cost $100. You paid
and went to the camp. When you got to the
camp, they just had you watch football movies
all day.
 Was there a legally enforceable contract?
 Yes. You agreed to pay money to the camp
and they were supposed to give you
basketball training.

31. Negotiation and drafting activity
 We are going to negotiate and draft a contract
 Negotiating and drafting contracts is
something that a lot of lawyers do—including
hopefully me.
 The goal is to come to an agreement.
 This requires each side to compromise, so that
they can get what they really want—to make a
deal.

32. When drafting be sure to
 Include all the terms
 Don’t be afraid of creative solutions
 Use specific binding language:
 “Shall” not “Will”
 X shallpay Y $10.
 Y shallwash X’s car.
 Not:
 X willpay Y $10.
 Y willwash X’s car.

33. Good Drafting Techniques
 Plain Language
 Include a Preamble
 Offerand
Acceptance
 The MirrorImage
Rule
 Binding Offers
Versus Invitations
to Bargain
 Revocability of
 Consideration
 Authorized
Representation
 ProperGrammar

34. Types of University Contracts
 Affiliation and
International Program
Agreements
 Athletic-Specific, or
Student-Specific
Contracts (non-
procurement in nature).
 Interagency Cooperation
Agreements (IAC) &
Inter-local Agreements
 Museum and Exhibit
Agreements
 Prof. Service
Agreements (for
individuals not organized
as a business)
 Procurement Contracts;
Vendor Services
 Sponsored Research
Contracts and
Sponsored Projects
 University-Provided
Services

35. Major Areas within Every
Contract
Parties
Effective Date and
Terms
Statement of
Service (SOS)
Pricing
Performance
Standards
Warranties
Remedies
Risk Allocation
Boilerplate
Signatures

36. Common Contractual Terms
Three commonly negotiated/contentious
provisions:
1. Warranties
2. Indemnification [protection against loss or
liability from 3rd
party
claims]
3. Liability & Damages [legal responsibilities]

38. Government Contracting

39. Questions?