Contractual Agreements: Written and Spoken English [Case Study]
The Client was from China and graduated from Princeton undergrad and Yale business school. The family wealth came from their global import and export business. The Client wanted background information on Consignment Agreements in the United States. I accepted the offer to provide this business service thinking it would be a basic exercise in understanding business language and consignment terminology. Little did I know the next few weeks would expose me to the diversity of interpretation of contractual language and how English can become fluid even if standard operating procedures and legal protocols were in place.
I presented the Client with a 15 item sample consignment contract used in a previous interaction with an art company in New York City. I sent the form online and asked the Client to review each section for review during our weekly video chat. The Client spent little time in sending me a dissertation on the draft contract and how the language was being used to the disadvantage of the Party with the Right To Sell. I informed the Client of the capacity for the draft to be re-written to meet the needs of all Parties involved.
Yet the Client seemed adamant regarding the language used in terms of the non-exclusive and exclusive rights and in particular the phrase ‘ devote its best efforts to the sale’. I ensured the Client profit was the major motivation and not linguistic interpretation, yet the same concerns appeared in the section pertaining to Proceeds of Sales. I feared at this rate, I would never be compensated and my other projects would be pushed further down the pipeline if I allowed this back and forth to continue in each section. We had met seven times online and had not moved passed section three for the last two meetings.
I devised a strategy using a simple ‘Q&A’ approach and ‘beginning at the end’ to shape the Clients’ vision in regards to consignment agreements and the contracts language. I informed the Client that section three of the contract dealt with Records. I asked the Client to create the perfect numbers to properly evaluate the art and the percentage for the Seller. At first this tactic worked swimmingly, then we moved to the section on Title To Merchandise and it was back to splitting legal hairs with the Client.
The language appeared based upon how it was written, that once the artwork was in the custody of the Seller, they were completely responsible for its safekeeping as if it they were the Owners. This did not set right with my Client and we had to come up with a language equation which did not appear to switch ownership rights to the Seller. Now all of this would be normal review and revision if not for the Client’s desire to remove Defaults and Arbitration from the contract.
As I struggled to explain the technical necessity of such sections, the Client introduced new definitions from military contracts and medical terms completely out of context of the business being discussed.
I felt obligated to complete this task with the Client but I knew I needed a new form of engagement. I gave the Client the opportunity to introduce any language into the contract and we would us only legally applicable definitions. This option allowed us to move from section four to eleven in one video session. I realized the Client needed emotional comfort more so than technical validity. It was I who had entered the engagement with the incorrect perspective and had I not switched we may well still be reviewing Amendment and Severability. Language is only useful if it allows for common understanding to create a foundation for a stable edifice.
The written word is night and the spoken word is day when it comes to bringing different minds together in a monetary agreement. With respect to the subject matter, it could be artwork or medical devices, the goal is to make each party feel protected as well as respected. If these can be achieved, the union can last a day or a lifetime but the person responsible for producing the outcome will know before the ink dries. Professionalism demands leaving little to chance, but courtesy and customer service requires teaching and patience.
