I share with you a post (translated by AfiTaC from French) from Jean-Charles Savornin, a thought leader in France on contract management, because I fully agree with him on the subject whether contracts are cast in stone, or not: 

Summer is an incredible time when we live differently from the rest of the year: on vacation, elsewhere, with a different climate …

This year, I watched Fort Boyard [a typical French television show opposing two teams on a variety of activities in a fortress]. One of the tests refers to the maxim DURA LEX SED LEX written on a lintel (here is the link with the contract management …)

The law is hard, but law.

This sentence, quite explicit, makes reference to the law. What about the contract then, which applies between the parties signing up to it? Is it also hard, but the contract?

Well, that’s the beauty of the contract. It is, as I often say, the reference of the relationship between the parties, the Bible of the project … with the difference that we can change the contract, not the Bible. So, the contract is more flexible and editable. It cannot be seen as “hard” or unfair. Remember that the contract was signed by the various parties, and that there is little, in the “usual” business at least, obligation to sign (no one puts a gun to your head).

So, let’s stop saying that the contract is hard, that it is unfair, that it is badly signed, that it should have been written differently. And let’s live by Jean-Jacques Rousseau’s sentence:

Jean-Jacques Rousseau: Obedience to a self-prescribed law, that's freedom.

Obedience to a self-prescribed law, that’s freedom.

Jean-Jacques Rousseau

In terms of contract management, the contract represents this law that has been prescribed. But by “whom”? I can already imagine some persons opposing that they are not responsible for the contract signed. The “whom” refers to the entity for which you work and which you represent in your mission. Clearly, if your company has signed a contract, you are part of the “those” who have self-imposed this contract. And if you do not like it, you can take action; you can propose a modification of the contract or change jobs.

What freedom have we gained?

It is all that can be done in the framework of the contract and all that the other can do as well. “One” then has the freedom to do what is written and not to do what is not written. But “one” is especially free to propose a modification of the contract if something is no longer appropriate. And “the other” has the freedom to accept, or not. This the contract defines the playing field.

I use the word “playing” on purpose. A contract must be seen as a space of freedom in which your inventiveness can express itself to realize the opportunities. Because these opportunities will make your project a success, or not. These opportunities will allow you to move forward and offset the risks. There are risks … and there will be problems. Just as there are opportunities … and there will be good news. Besides, is the pre-award phase not called the [sales] opportunity phase in many companies? The contract is an opportunity for your organization. And you must accompany the execution of this opportunity to turn it into good news!

SAVORNIN Jean-Charles | ESCP

So, stop seeing the contract as a constraint, see it as a degree of freedom.

Jean-Charles Savornin
Jan Bouckaert

Personally, I’ve been working quite a lot on contract negotiations at pre-award stage. Later on, during execution stage, I was often surprised about the detached way the project team spoke about the contrat: “unfortunately, the contract says the following” as if it was cast in stone. I usually replied : “yes, while making the contract, we [- to emphasize the deal between persons and companies -] agreed on the following for this reason and have tried to write it down. Contracts are not cast in stone. If now the circumstances have changed or you want to modify something, please do agree with the other party just like we agreed before”. 

You can find the original post on Jean-Charles Savornin’s blog at the following location (available in French only): http://www.contractence.fr/de-fort-boyard-a-jj-rousseau/

About AfiTaC

AfiTaC.com is the blog on commercial and contractual subjects for the Project Businesses (Construction, Infrastructure, Oil & Gas, Power & Renewable, Water Supply & Sanitation, etc). Its objective is to stimulate reflection, learning, convergence to balanced contracts and positive dispute resolution. You can subscribe to our newsletter by writing to “newsletter@afitac.com”. You can also connect to our LinkedIn page. Engagement with the readers is what keeps us going. So, don’t hesitate to exchange with us by commenting here below, liking our publication on LinkedIn and writing to us “info@afitac.com”. 

1 Comment

Blog on contracts, "AfiTaC.com", new status after 6 more months - AfiTaC.com · 16 May 2019 at 8 h 27 min

[…] a guest blogger. We have already benefited from contributions from Jean-Charles Savornin, “Contract Management: are contracts cast in stone?“, and Paul Netscher , “Negative cash flow for construction […]

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