Whether in everyday life or at work, we all come into contact with various contracts and agreements — rental contracts, property sale and purchase contracts, commercial contracts, procurement contracts, property division agreements, and many more. The sheer variety of these contracts means we often find ourselves needing to draft, review, or approve them. Drafting a valid and well-crafted contract is essential to safeguarding our rights and interests.

What problems might you encounter when drafting a contract yourself?

Some people choose to draft contracts on their own. For experienced professionals, drafting a contract may not be particularly difficult, but for non-legal professionals it is easy to run into all sorts of issues.

• Copying contract templates word for word. The drafter’s actual intentions and the purpose of the contract are not properly expressed.
• Inaccurate wording. For people who have migrated to Australia and are not native English speakers, it is easy to use imprecise language in a contract. Given the nature of the English language and cultural differences, a self-drafted contract can easily become ambiguous. When the intent of a contract can be interpreted in more than one way, the contract may be rendered invalid, leading to disastrous consequences such as damaged business relationships or contract disputes.
• Overlooking special clauses or circumstances. When non-professionals draft contracts, they may lack experience and fail to consider every angle. Important details may not be carefully addressed, making it difficult to rely on the contract’s clauses to protect their rights should a dispute arise.
• Missing key information or key clauses. For example, failing to clearly set out liability for breach of contract.

Is it appropriate to draft a contract yourself by referring to a template?

If you draft a contract without engaging a lawyer and instead edit it yourself, problems are very likely to arise. Some people find contract templates or samples online and simply adapt them. To some extent, contract templates and samples can provide important guidance and reference for non-legal professionals drafting contracts. You select the template closest to the needs of both parties, then adjust certain clauses to suit your requirements. Drafting a contract in this way — referring to a sample and adapting a template — is indeed efficient and saves time and effort. But is it really appropriate?

The answer is no. As legal professionals and lawyers, our advice is that when drafting a contract, you should never copy a contract sample word for word, and templates found online should not be used as-is. The reasons are as follows:

• A contract template or sample sets out general provisions for a particular type of contract. Its clauses are broad and cannot fully accommodate the specific requirements of a particular matter.
• The purpose, type, and content of a contract template will not exactly match the actual needs of the parties, so the template must be modified. During modification, a lack of relevant legal knowledge makes it easy to make mistakes or omit key information.
• The starting point of a template cannot be identical to the parties’ actual starting point. Using a template directly can cause you to be led by the template’s content, form fixed thinking, and overlook what the contract actually needs to cover.
• Some contract templates and samples were created quite some time ago, while laws and regulations are constantly being updated. A template found online may already be outdated by the time you use it, or no longer suited to current transaction practices and judicial practice. Non-professionals may not be able to identify these issues when using a template, which can leave hidden risks and exposure.

There are many risks in adapting contract templates and samples, and we advise non-legal professionals not to blindly use a sample to draft a contract on their own. A contract is the fundamental basis for resolving disputes when they arise. An accurate and effective contract ensures the smooth performance of what has been agreed and helps prevent disputes. Even if a dispute does occur, well-drafted clauses can be used to resolve it. For this reason, do not cut corners when drafting a contract — it must be approached carefully and thoughtfully.

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

While you can write a contract yourself, given the potential legal risks and contract disputes that may arise down the track, we still recommend consulting a lawyer. Lawyers have clear advantages when it comes to drafting contracts:

First, lawyers have a comprehensive and thorough understanding of the law. They can apply various legal provisions in an integrated way rather than being limited to the legal clauses mentioned in a template. Australians place great importance on the “spirit of contract”, making professional legal advice all the more essential.

Second, experienced lawyers stand on the front line of legal practice. 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 that may exist. They can help clients anticipate and avoid various legal risks at the drafting stage.

Furthermore, lawyers are familiar with litigation procedures and understand the legal process for different kinds of matters. Accordingly, they will include clauses in the contract that make it easier for the client to pursue their rights through litigation if needed, so that if a dispute later arises, the client is in a stronger position to protect their interests.

The value a lawyer brings to contract drafting is not in the wording on the page, but in the legal grounding and industry experience behind every word. Every clause is underpinned by the lawyer’s legal knowledge and case experience.

Final thoughts

A contract is a very important legal document. When drafting a contract, accuracy of content is critical — the expression must be clear and unambiguous, and all necessary clauses and foreseeable special circumstances should be written in fully and without ambiguity. Drafting a contract is a rigorous and serious matter. If even a single detail, or even a single word, is ambiguous, it can lead to disastrous consequences that far outweigh any effort saved. We therefore strongly recommend that if you need a contract drafted, seek help from a qualified lawyer so that you have greater legal protection before the contract is formally performed.