In Thee We Trust!
My last article "My Consultant Just Says....Issue a Notice!" received a couple of exceptional comments very early after it was posted. These comments got me thinking. The article was actually about how we set and administer contracts, but the comments do point towards a different angle - Why should we? We didn't in the past (did we!)? Why do people not just honour their promise? or trust each other....!
I personally see a lot of contracts and they arrive from many different sources, end user/ occupiers, manufacturing companies, consultants and main contractors. Some are simple one liners, others are complex volumes, almost like an encyclopaedia, only with sub and cross references to other volumes, documents, appendices, etc., etc. In both types of contract, simple-ese or volume-ese, that I have appraised, actually understanding what each party is promising to the other has become a challenge in its own right. I appreciate that there are appropriate rules of construction to follow, but what happened to an eloquent simplicity when drafting and agreeing these things?
Complicated approaches, that rely upon twists and turns, upon tongue twisting or mind numbing referencing and cross referencing, are arguably untrustworthy by their nature - after all if you cannot understand them or have not been given sufficient time to understand it, then how do you know that each and every word, line, paragraph and page does match your offer?
The provocative sceptic in me would simply argue that this is an approach that has been designed to ensure that risks are simply forced, with little thought and concern, down through the contractual chain to those at the end who are left holding the proverbial baby.... who, nine times out of ten, is the wrong or most inappropriate person, or company, to carry or manage such a risk.
Unfortunately, in a world where work has been more difficult to come by, we appear to have been more willing to accept contracts on trust, we have even had one meeting with one company who's MD quoted that they have simply signed an agreement without even reading it in the first place....scared me they did!
Now I have been around in the Construction Industry for a few years, starting out my career at 18 years young, but I am far from a connoisseur in how business was done in the past. Through my fathers own career I have witnessed, even before my own career started, the damage that miss-trust, or a genuine unwillingness of people to be fair and reasonable, can cause. In today's industry I would not dare to compare the past to the present, however I will just point out one thing....there are a lot of articles about none payment of specialist subcontractors(particularly of late)out there!
Trust and integrity in business and commercial contracts is an important factor, if someone does fail to honour an obligation then it could put you in a very difficult place, it could mean the difference, in some more extreme cases, of taking food from yours and your families mouths. However where large companies are concerned, or companies where they are ruled with an iron fist, trust with your daily counterpart can be difficult to establish. Trust is a bi-lateral relationship—one trusts, and the other is the trusted. However are you trusting the counterpart or a distant cattle rustler?
Often we intend more than one thing when we use the word trust. We use it to describe what we think of what people say. We also use it to describe behaviours. We use it to describe whether or not we feel comfortable sharing certain information with someone else. And we use the same word to indicate whether or not we feel other people have our interests at heart, vs. their own interests and therefore are going to administer our agreements as intended. Unfortunately we may trust and be trusted however, where there is ambiguity, grey through complexity or adversity, trust can erode more quickly than it arrived and we can find that if we are not focused on the details, even old friends rob you blind! (and I do speak from experience on this!)
Relationships will of course always play a part in business but, preparing the right contracts, clear contracts, notices, at the right time and of course following the contract (Baaaaah!) are all steps that we must take in the modern contracting environment to protect ourselves against a hold up on the trail to success. By the trusting, such approaches should not be seen as contractual aggression, or means to plunder unnecessarily, but should be considered as the professional, structured, controlled approach that is necessary...Every Day!