By contracting consciously, you chose function over form. Go back to the core of a contract: what do parties intent with their relationship? Such intention is, in conventional contracts, usually hidden in general terms under the “consideration”. In a conscious contract, the intention is “the heart” and thus the most important part. Is a conscious contract different from an ordinary contract? No, it isn’t. Except that in consciously designed contract parties openly agree to discuss all relevant issues explicitly, also the ‘legal’ issues. Dialogue throughout the creation and duration of the agreement is paramount.
What steps to take for the practice
In order to have a successful design process, you and the other party have to say ‘yes’ to the following preconditions. First, dialogue is paramount! The precondition for the creation of a successful contract and for a lasting relationship is that parties commit to remain in dialogue with each other throughout the entire relationship and test the set goals, progress, and risks against the intentions.
You have to discuss your individual and mutual intentions, and thus have to have good self-knowledge. So, test how well you know yourself and your own intentions. And to share the true intentions there should be sincere trust and openness. Having a double agenda or withholding cards affects the sincerity of the stated intentions, and thus the confidence and success of the relationship.
What steps should be taken to design your conscious contract? As said, the heart of your contract is the intention. In order to get the intention clear, you have to extensively discuss their hopes and dreams (what do you want to get out of it? What is your own joint mission? What do you bring to the table and what do you expect from the other party?), but also your fears (What are you afraid of? What should not happen? What risks do you run because of the relationship? Which action is unacceptable?). You often have ideas about this in the traditional contracting process, but for the sake of peace (or for concealed commercial reasons), it is often not expressed. Pity, because by not sharing it, the first pitfalls in the relationship are often dug.
The final step in the process is to discuss all commercial, operational, and "legal" topics; the usual regulatory provisions in an agreement. However, different from the traditional contract, not the legal advisor but you yourselves have to work on this. Subjects such as duration, liability, and ownership are to be discussed. You must form an opinion on all subjects, all in the light of “the heart”.
NOTE: avoid trying to regulate the unpredictable! Ask the question when discussing the commercial and material provisions is: “Is this what we want to arrange foreseeable or not?”. Arrange only what is foreseeable. Should any unforeseeable situation arise, you will discuss this in the light of the intention. Finding solutions to questions you did not discuss before is, therefore, a joint effort and.
TIP: Because (commercial) 'falling in love' sometimes makes people blind, it is advisable for parties to be guided in the designing process. Expressly not by a one-sided lawyer, but by an independent facilitator who can get to the bottom of things.
And since the contract is designed by yourselves, use clear language (avoiding legal jargon) that suits your relationship or even use visuals. That way you will love your own designed contract!
A contract reflecting the real intentions of parties enhancing full and mutual commitment and a responsibility to always have a dialogue for better and worse. A parties contract, not a lawyers contract. Isn’t that what we all want?
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