Watching Vague Contract Terms

Yesterday, I had an email exchange with a colleague who is very active in negotiating contracts and in writers issues. The topic turned to vague contract terms. it's a big problem in many contracts. A contract will seem to state something, and yet when you look closely at the wording, you see that much is left up to the imagination, or later argument.

A good example, as I often mention, is the term "acceptance." Many writers are satisfied when they see payment on acceptance in a contract. And yet, what does acceptance mean, when does it occur, and who at a client (whether a publisher or other corporation) must provide it? Does acceptance happen when the writer's contact thinks the piece will work? Does it happen after the questions have been answered? After final approval of the piece right before it's about to be used? We've just gone from acceptance happening shortly after the client reads the first draft to some time after a second or later draft, to effectively on publication. You can find such problems in rights clauses. For example, what does "electronic rights" actually mean?

Not everything in a contract can be pinned down to something that neither side could dispute. Courts recognize terms like "reasonable effort," though there is no hard and fast definition to which you could point. But much in contracts is hazy, and the miasma can lead to a cloudy future in a future dispute.

Reading many hundreds of contracts between the two of us, we're both convinced that most of the problems are not the result of lawyers' conniving, but of sloppiness and ineptitude. What lawyer wants to explain to a boss that he or she didn't nail down the terms of a contract in an unambiguous way? The bell curve applies everyone, and just as many lawyers are below average as above. However, that doesn't matter, because if you sign the mistake, you're stuck with it. Writers need to learn to read contracts - go through the language carefully and read it literally. Don't gloss over anything, and don't excuse yourself from asking the necessary questions by saying that you can clear them up in an email. You won't end up sending the email, and even if you do, it's the contract itself that you signed.