Лектори докладно проаналізували разом з учасниками складання контрактів, а саме:
1. Вступ – Обговорення мети вебінару: структура контракту в англо-американській системі.
2. Effective Date vs. Commencement Date - типові формулювання, практичні приклади, можливі ризики.
3. Title and Date of the Contract - для чого потрібні назва та дата документа.
4. Parties and Recitals - Хто такі Parties та як їх належно ідентифікувати. Роль Recitals у договорі. Формулювання і стилістичні особливості.
5. Термін WHEREAS - Значення та функція в структурі Recitals. Приклади правильного використання.
6. Operative Provisions - Основні розділи Operative Part. Обговорення Other Operative Provisions.
7. Conditions Precedent – Визначення, застосування та приклади в угодах (M&A, loan agreements, services contracts).
8. Boilerplate Clauses – Структура та приклади.
9. Signature Block - Структура кінцевого блоку підписів. Підписання фізичне vs. електронне.
10. Supplements to Legal Documents – Додатки та додаткові угоди. Обговорення термінології.
11. Підсумок та Q&A - Відповіді на запитання учасників.
У рамках характеристики контрактів акцентовано на наступному:
1. Introduction – Purpose of the Webinar: Structure of a Contract in the Anglo-American Legal System
The webinar explains the structure of a commercial contract in the Anglo-American legal system and the function of each of its main sections. It focuses on how contracts are organized, the purpose of individual clauses, and the drafting techniques used to create clear and effective agreements. The overall objective is to improve contract drafting, reduce ambiguity, and minimize disputes.
2. Effective Date vs. Commencement Date – Typical Wording, Practical Examples, and Risks
The Effective Date is the date on which an agreement, law, or provision takes legal effect. The Commencement Date is the date on which the contractual obligations or activities begin and the agreement becomes operative.
Typical wording includes:
“The Effective Date of the provision was clearly stated in the Act.”
“The Commencement Date means the January 1, April 1, July 1 or October 1, as the case may be.”
In commercial contracts, the agreement date is often different from the Effective Date or Commencement Date. The commencement clause specifies when the provisions of the contract come into effect. The date is usually inserted upon completion, the final stage of contract formation.
A practical drafting risk is confusing the signing date with the Effective or Commencement Date, which may create uncertainty regarding when contractual obligations actually begin.
3. Title and Date of the Contract – Purpose of the Title and Date
Every commercial contract contains a title indicating the type of agreement, for example:
➤Sale and Purchase Agreement
➤Contract for the Sale of Goods
➤Assignment Agreement
The date appears after the table of contents (if any) and usually begins with wording such as “This Agreement is made on 25 August…”. The month is written in words to avoid confusion between UK and US date formats. The date at the beginning of the contract should correspond to the execution date at the end of the document.
4. Parties and Recitals – Identification of the Parties and the Role of Recitals
The Parties are the persons or entities entering into the agreement. They should be properly identified by:
→full legal name;
→legal status (e.g., Ltd, LLP);
→registered address;
→company registration number (required for UK corporate entities).
The Recitals (also called the Background or Preamble) explain why the parties are entering into the agreement. They contain background facts and the commercial context but should not impose contractual obligations. Recitals are commonly labelled (A), (B), (C) rather than numbered to distinguish them from operative clauses. If a dispute arises, Recitals may assist in interpreting the parties’ intentions, although they are generally not binding unless the contract expressly provides otherwise.
5. The Term WHEREAS – Meaning, Function, and Proper Use
WHEREAS is the traditional introductory word used in Recitals. It means approximately “because” or “considering that.”
Its function is to introduce the factual background and reasons for entering into the agreement. A typical example is:
“WHEREAS the Vendors have agreed to sell to the Purchaser, and the Purchaser has agreed to purchase, the entire issued share capital…”
Modern drafting increasingly replaces repeated WHEREAS clauses with a heading such as “Recitals” or an introductory sentence like:
“This contract is made with reference to the following facts.”
This modern approach introduces the subject matter and objectives of the agreement in a clearer style.
6. Operative Provisions – Main Sections and Other Operative Provisions
The operative part usually begins with wording such as:
“The Parties Hereby Agree as follows…”
“NOW THEREFORE, IT IS AGREED AS FOLLOWS:”
These provisions create the parties’ rights and obligations and form the core of the contract.
The principal sections include:
➤Definitions (or Interpretation);
➤Subject matter of the contract;
➤Consideration (price);
➤Warranties;
➤Indemnities;
➤Payment terms;
➤Other negotiated commercial provisions.
The Definitions section explains important terms, which are capitalized and listed alphabetically to prevent ambiguity.
Other Operative Provisions commonly include:
➤Warranties;
➤Limitation and exclusion clauses;
➤Other standard clauses;
➤Boilerplate clauses.
7. Conditions Precedent – Definition, Application, and Examples
Conditions Precedent (CPs) are conditions that must be fulfilled, satisfied, or waived before contractual obligations become enforceable. Until the condition is met, there is no completed deal.
Applications include:
→commercial contracts;
→deeds;
→transactions involving real property.
Examples include:
M&A transactions – completion is conditional upon the seller providing a valid marketable lease free from encumbrances before the Completion Date.
Loan agreements – contractual obligations commence only after specified pre-closing conditions are satisfied.
Service contracts – performance begins only after agreed conditions have been fulfilled.
A typical clause states: “The sale and purchase hereby agreed is conditional upon and subject to the following conditions being satisfied on or before the Completion Date…”
8. Boilerplate Clauses – Structure and Examples
Boilerplate clauses are standard contractual provisions that may appear routine but have important legal effects. Some boilerplate clauses can create hidden (implied) duties, requiring the parties to perform all acts reasonably necessary to give effect to the contract.
Examples include:
Entire Agreement – confirms that the written contract represents the complete agreement between the parties.
Further Assurances – obliges the parties to take any additional actions reasonably necessary to implement the agreement.
Notices – regulates how and when contractual notices must be delivered.
Recitals – although not operative provisions, they frame the parties’ intentions and may influence contractual interpretation.
9. Signature Block – Structure of the Signature Section. Physical vs. Electronic Signatures
The Signature Block is the final section of the contract where the parties formally execute the agreement. It typically contains:
→the name of each party;
→the authorized signatory;
→signature;
→date of signature.
The contract date at the beginning of the agreement should correspond with the execution date in the signature block.
A contract may be signed:
→physically, by handwritten signatures on original counterparts; or
→electronically, using electronic signatures where permitted by the applicable law and agreed by the parties.
Where counterparts are used, each party signs its own original copy, and together the signed counterparts constitute a single agreement.
10. Supplements to Legal Documents – Appendices and Supplementary Agreements. Terminology
Commercial contracts may include several types of supplementary documents:
➤Appendix – supplementary material attached to the end of a contract; commonly used in the UK.
➤Exhibit – a supplement to a contract or court filing; the preferred term in the US.
➤Annex – another term for attached material, frequently used in international treaties.
➤Attachment – a document attached to another document, now commonly referring to files attached to emails.
➤Schedule – material that could appear in the main contract but is moved to the end for clarity and brevity. Schedules are generally considered part of the contract and may require separate signatures.
➤Enclosure – documents physically enclosed in the same envelope or package.
➤Supplement – a separate document that adds to or amends an existing agreement rather than forming part of the original contract.
When drafting, the terminology should follow the practice of the relevant jurisdiction (e.g., Appendix in the UK and Exhibit in the US) and be used consistently throughout the documentation.
11. Summary and Q&A – Answers to Participants’ Questions
The webinar concludes with a review of the essential elements of a commercial contract, including:
➤Commencement and date;
➤Parties;
➤Recitals;
➤Definitions;
➤Main operative clause;
➤Consideration;
➤Conditions;
➤Warranties;
➤Confidentiality;
➤Duration and termination;
➤Boilerplate clauses;
➤Schedules;
➤Appendices;
➤Exhibits.