Mutual drafting: Overview, definition, and example
What is mutual drafting?
Mutual drafting refers to a contractual principle stating that both parties have actively participated in preparing and reviewing an agreement, ensuring that no single party is solely responsible for its language or interpretation. This principle prevents one party from arguing that ambiguities in the contract should be interpreted against the other party.
For example, in a business partnership agreement, both parties may negotiate and revise terms before signing, confirming that the contract is the result of mutual drafting.
Why is mutual drafting important?
Mutual drafting is important because it promotes fairness and balance in contracts, ensuring that both parties have had an opportunity to contribute to the terms. It helps prevent disputes over unclear language and reduces the risk of one party claiming they had no say in the agreement.
For businesses, including a mutual drafting clause protects against claims that ambiguous terms should be interpreted in favor of one party. It also encourages collaborative contract negotiation, leading to clearer, more enforceable agreements.
Understanding mutual drafting through an example
Imagine two companies enter into a supply agreement and spend weeks negotiating terms. Both legal teams contribute revisions, ensuring the contract reflects the interests of both parties. Since the agreement results from mutual drafting, if a dispute arises, neither company can argue that unclear terms should be interpreted against the other.
In another scenario, a freelance designer and a client agree on a service contract. The designer provides an initial draft, and the client suggests modifications before signing. The final version includes a mutual drafting clause, ensuring that both parties take equal responsibility for understanding and agreeing to the contract terms.
An example of a mutual drafting clause
Here’s how a mutual drafting clause might appear in a contract:
“This Agreement is the result of mutual negotiation and drafting by both Parties. No provision of this Agreement shall be construed against either Party on the basis that one Party was the primary drafter.”
Conclusion
Mutual drafting ensures that both parties contribute to and agree upon contract terms, preventing disputes over interpretation. By including a mutual drafting clause, businesses create fairer agreements and reduce the risk of contractual ambiguities being used to one party’s disadvantage.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.