Of contracts

As a counterpart to law in rem which is concerned with the particularities of and legal responsibilities towards ‘things’ as objects, the Swiss code of Obligations shows the relationships (in the law of obligations) as being between the individual legal subject and the object. These are symbolically described as ‘legal ties’. Rights and duties, claims and bonds, assets, liabilities and debts either arise non-contractually (from illegitimate dealings in compensation law or without ‘default’ in the law of unjust enrichment) or because of agreements which are made by contractual partners in order to regulate the legal spheres which mutually influence each party.

What is commonly accepted under the name “jurisprudence” does not only include “Kautelen” (security provisos), which are ubiquitous for contract lawyers, but much more importantly very high requirements for the quality of contractual agreements: even in this case it is not the quantity which is decisive as huge piles of paper are no guarantee of good contracts. Quite on the contrary: reducing the complexity, comprehending the essence and making it clear, formulating and expressing complicated things in a simple and understanding way is what the parties actually desire and this is our practical legal goal when we establish contracts. “Keeping it short and simple” to us means: as little as possible and as much as necessary – but never more.

However, a further – to a certain extent legally ethical – dimension still has to be mentioned when speaking of contracts: Unlike the common, and still customary, continental European tradition of double representation when establishing a contract, we plead very clearly in favour of avoiding clashes of interest in this area. For fairly balancing the immanent clash of interests in every set of contractual negotiations (and if necessary also accepting a failure in completion) is only possible if every side has its own advisor and representative, to whom only exclusive and absolute trust can exist.

The fact that it is lawyers who are best predestined for this job results from our unrivalled knowledge of the other dimensions of legal aid (namely how conflicts can be avoided) as we are experts in the culture of conflict and if necessary also the disputable assertion of claims. The most important characteristic of contractual agreements continues to be the prevention and avoidance of conflicts.



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