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Translating the Business Deal into Contract Concepts

The analytic reasoning process used in drafting a contract is different from the one used in writing a persuasive document -- whether a memo or a brief. Rather than applying the law to the facts, a deal lawyer translates the client’s business concerns into legal concepts and then into contract provisions. This class is devoted primarily to teaching participants this skill. In addition, the workshop shows participants how the underlying structure of agreements is similar and how representations and warranties, covenants, and conditions precedent reflect the business deal. Finally, the participants learn a vocabulary that they can use when discussing contracts and business issues.

The workshop begins with the participants negotiating a relatively simple transaction: the purchase of a car. Inevitably, the buyer begins by asking basic questions about the car. What make and model is it? How many miles has it been driven? Has the car been in any accidents? Participants are then asked how the seller’s responses should be incorporated into the contract. In exploring the answer to this question, participants learn not only the legal ramifications of representations and warranties, but also their critical business role as a risk allocation mechanism. As the hypothetical negotiation plays out, the legal and business ramifications of covenants and conditions precedent are also brought into relief. After the negotiation concludes, the participants briefly track through an acquisition agreement to see how these same contract concepts provide the framework for a more sophisticated deal.

The workshop concludes with a hands-on exercise. Working in groups, the participants review an employment agreement deal memo and determine whether individual deal terms should be incorporated into the contract as representations, covenants, or condition precedents.

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