Contract Drafting Negotiation

All That Glitters Isn’t Gold. Is Your Contract Merely Sparkly?

February 13, 2023

Just like in a heist movie, they inspected a few of the shipping containers expecting to find the half billion dollars’ worth of nickel, a metal vital to producing batteries for electric vehicles, that they were all to contain, only to find other metals of lesser or no real value.

That’s the story reported on page 1 of the February 10, 2023, issue of The Wall Street Journal in connection with the commodity trader, Trafigura Group.

Not only is all that glitters not gold, shipping containers thought to contain nickel might just contain carbon steel.

So, what does this B-movie plot come to life have to do with you, assuming that you’re not a metals trader? More than you might realize.

Here are some rather common examples:

• You enter into an agreement thinking you’ve obtained, for example, a seven year contract. Nine months later, you realize that it’s terminable on 10 days’ notice under some circumstance that just occurred.
• You enter into an agreement to provide all services at a hospital system, only to find out that the system has the right to unilaterally grant carve outs to your exclusivity.
• You think you’ve solved your financial problems through obtaining stipend support only to realize that the support is actually structured as a loan that has to be paid back, with no hope of ever doing so.
• Just as in the most notorious of “you’ve got to be kidding me, isn’t this a scam” sort of contracts, insurance policies, nearly any form of legal agreement is capable of giving you something on page 3 and taking it away on page 14.

Prepare for negotiations. Negotiate for your best deal. Make sure the agreement reflects that best deal. If the best deal isn’t good enough, hopefully you’ve positioned your business so that you don’t have to take it. And in any event, make sure that what you take is consistent with what you believe you’ve taken.

If a fake “gold” ring can turn your finger green, and if $577 million worth of nickel turns out to be scrap metal, there’s no reason why your contract might turn out to be something other than what you expect.

Image: “Old Wooden Nickel Gag Coins” by Cindy Shelby is licensed under CC BY 2.0

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