Whether in our personal or professional lives, we inevitably come across various contracts and agreements — tenancy agreements, property sale contracts, commercial contracts, procurement contracts, property-distribution agreements, and more. The sheer variety of these contracts means we often find ourselves needing to draft, review, or approve them. Drafting a sound and enforceable contract is essential to protecting our rights and interests.

What problems might you run into when drafting a contract yourself?

Some people choose to draft contracts on their own. For experienced professionals this may not be particularly difficult, but non-legal professionals can easily run into a range of issues.

1. Mechanically copying a contract template or sample. The intended meaning and purpose of the contract are not expressed correctly.
2. Inaccurate wording. For those who have migrated to Australia and are non-native English speakers, it is easy to use imprecise contract language. Given the nature of English and cultural differences, a self-drafted contract can easily become ambiguous. When the intent of a contract can be read in more than one way, the contract may be rendered ineffective, leading to disastrous consequences — such as derailing a business relationship or causing contractual disputes.
3. Overlooking special clauses or situations. When drafting a contract, non-professionals may lack experience, miss important considerations, and fail to capture critical details. If a dispute arises later, they may be unable to rely on the contract terms to protect their interests.
4. Missing key information or key clauses. For example, failing to clearly set out the consequences of breach.

Is it appropriate to draft your own contract using a template?

If you draft a contract yourself without engaging a lawyer, problems are highly likely to arise. Some people find templates or sample contracts online and adapt them. To a certain extent, templates and samples can provide useful guidance and reference for non-legal professionals. You might select the template that most closely matches the needs of both parties, then adjust some of the clauses to suit your specific requirements. Drafting this way is certainly efficient and saves time and effort. But is it really the right approach?

The answer is no. As legal professionals, our advice is: never mechanically copy a sample contract when drafting, and do not use templates found online directly. The reasons are as follows:

1. Templates and samples contain general provisions for a particular type of contract. The clauses are broad and cannot fully accommodate the specific requirements of individual matters.
2. The purpose, type, and content of a template cannot exactly match the parties’ actual needs, so the template has to be modified. During modification, a lack of legal knowledge makes it easy to make mistakes or omit key information.
3. The starting point of a template cannot fully align with the parties’ actual situation. Using a template directly can cause you to be guided by its content, leading to fixed thinking and overlooking the real requirements of the contract you actually need.
4. Some templates are quite old, while laws and regulations are constantly updated. A template found online may already be out of date, or may no longer suit current commercial practice and judicial interpretation. Non-professionals may not be able to tell the difference when using a template, leaving hidden risks.

There are many risks in relying on templates, so non-legal professionals are advised not to blindly use them to draft contracts themselves. A contract is the fundamental basis for resolving disputes when they arise. An accurate and enforceable contract safeguards the smooth performance of the agreed matters and helps prevent disputes. Even if a dispute does arise, well-drafted clauses can help resolve it. Drafting a contract is not something to rush or cut corners on — it must be approached with care.

What benefits can a lawyer bring to the contract-drafting process?

Although you can write your own contract, given the legal risks and potential disputes that may arise in the future, we still recommend consulting a lawyer. Lawyers have clear advantages when it comes to drafting contracts:

First, lawyers have a comprehensive and in-depth understanding of the law and can apply legal provisions holistically, rather than being limited to the clauses mentioned in a template. Australians place a high value on the principle of contract, which makes obtaining advice from a qualified lawyer all the more important.

Second, experienced lawyers work at the front line of legal services. They have handled many matters of the same type and have been directly involved in resolving disputes, giving them a deeper understanding of the risks involved. They can help clients anticipate and mitigate legal risks when the contract is being drafted.

Third, lawyers are familiar with litigation procedures and the legal process for various matters. They can include clauses in the contract that make it easier for the client to enforce their rights later. If a dispute does arise, the client is in a much stronger position to protect their interests.

The value of a lawyer drafting a contract is not reflected on the page itself, but in the legal knowledge and industry experience behind every word. Every contractual clause is supported by the lawyer’s legal expertise and case-handling experience.

Conclusion

A contract is a very important legal document. When drafting a contract, accuracy matters — the wording must be clear and unambiguous, and all necessary clauses and foreseeable special circumstances must be included and free of ambiguity. Drafting a contract is a serious and rigorous exercise. If even a single detail — or a single word — is ambiguous, it can lead to disastrous consequences that far outweigh any time saved. We strongly recommend that if you need to draft a contract, you seek help from a qualified lawyer, so that you have proper legal protection in place before the contract is formally performed.

If you have any questions about the above, please contact NS Legal. Our team of lawyers can provide you with detailed and professional legal advice.