Contractual Engineering

This may be more of a technical term than a legal term. When we refer to ‘contractual engineering’, we are talking about the possibility of structuring complex contractual operations without abandoning the general principles of law and without losing sight of the fact that legislation requires the contracts to be lawful, that there is agreement between the contracting parties, and that the contracts are held with the formality which the law requires.

Contractual engineering hopes to fairly develop more technical contracts. A certain fixed mechanism may work in one way for one person, but may require certain adaptations for another. The same principle applies to contracts. It is not enough to use proforma contacts for operations which have nothing to do with the idea being developed. Even when we speak about standard contracts like rental agreements, works contracts, distributions, supplies, etc. each person will unquestionably have different necessities.

Every contractual operation is unique. Lawyers must skillfully weave the needs of of our clients, trying to make the words and agreements on the page clear and precise way and avoiding any gaps in information. In case of controversy, a judge must have absolute clarity regarding the terms of a contract. Round-about wording should not turn a contract into an inoperable document.

It is reasonable to think that complex operations exist, which can not be framed within civil or business legislation. In this case, we are talking about “atypical” contracts, which are equally binding given that they include the essential elements required by law: lawful object, consent and formality. We can develop any type of contractual operation with these three basic elements. It is important to be extremely cautious so that we make the best use of the legislation in force. For example, legislation allows for parties to relinquish certain prerogatives, but it is necessary to follow a certain process to relinquish these rights. For this reason, lawyers must scrupulously study the legislation and jurisprudence so that they are always up to date.

Without doubt, contractual engineering will replace the original way of creating contracts. Today, as we face mobile markets and economies, we need to go back to the drawing board with flexible instruments which can be expanded into practical or strategic tools. These will allow contracting parties to satisfy their needs and reach a clear judgment in case of non-fulfillment.