Typical or asymmetric contracts? Invitation to the discussion

The win-win business theory so beloved by naive bunnies says that the parties to the contract should be happy and equal, everyone should get their share of carrots, cake and gingerbread should be enough for everyone, albeit slightly. Despite the fact that the truth of life suggests that such a picture of the world is a little naive and does not occur as often as we would like the weak of this world, but typical treaties are usually written from this position. Including development contracts close to us, saytiki, promotion, etc. Let's blow this approach nafig?



From the abstract point of view of a lawyer, there are parties, their obligations are in balance, the penalties are symmetrical, the specifics are recorded in a detailed statement of work, and for those who are smarter in functional requirements. Subscribed, you can work. Not the other way around. Customizable templates of such contracts can easily (and should) be taken here by THIS LINK , approximately in the middle of the list of documents. It would seem, but what else.

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Causes of asymmetry

But the heart asks for a holiday, and life experience suggests that in real life you are unequal and disequilibrium with the customer. There are several prerequisites for this:

The actual amount of work depends on the customer, for example, on the stability of his aesthetic criteria, the ability to formalize his intuitive design wishes, his own design ambitions and other little things in life, which represent a non-equilibrium risk, because there will always be real financial losses on any side on yours. We will not be naive and we will not say that in a situation “what the hell you did,” it is always the fault of the unruly client. Designers kosyachat God forbid too. Yes, and you too.



Real terms are radically dependent on the customer, although you are responsible for them. Yes, it is clear that we are writing the sacramental "in the case of blablabla dates are postponed for a comparable period, hereinafter referred to as". Imposable, Petrovich. Here Maniako just passed the design of the site, which was sculpted for 8 months. With two planned. And despite the fact that all our layouts were taken either with a minimum of edits, or immediately as they are. But plus half a year on "sorry, guys, we have no time."

The asymmetry of the actual relationship can be leveled by asymmetry in the contract.

One of the big tasks that we are discussing with FreshDoc is creating asymmetric contracts that would focus not only on the win-win strategy, but also further protect the weak side: the studio from the arbitrariness of the customer, and the customer from the dishonesty of designers. And without recourse to lawyers and to the court.

A significant problem in this place is the lack of real penalties in arbitration practice. Surely in fiction, you stumbled upon references to contracts with monstrous penalties, which hung over violators with a real Damocles sword. So, forget it. The norm of proportionality of penalties suggests to us that the maximum that you can achieve in financial terms is interest for using other people's funds in the amount of the refinancing rate. Well, that is almost nothing. All the rest of the court will pay off, even if the contract says that during the day of delay in providing the requested materials, the customer must pay you one million dollars (s) Dr. Evil.

Any whims for your money

The most promising idea seems to me the automatic occurrence of additional work in this place, with the obligation of the customer to pay them according to the price list (annex to the contract). These are not penalties, this is additional work, here’s the price, yes expensive, but we needed this document, file, image, according to the contract, we produced it. No, it is no longer necessary to agree on additional work, as the customer, in concluding an agreement, agreed that in the event of certain circumstances, additional work is carried out at agreed prices. Knowing this, his desire “and make me a couple more variants of this page with contractors” will disappear asymmetrically.

We copyright carefully

The second point we are working on is the work with copyrights, the time of their transition to the customer and the possibility in case of problems with payment, for example, to make claims about their violation. Thus, not to eliminate the problems arising during the work on the project, but at least the Customer will not be able to use the obtained layouts and preliminary results without your consent. And if you use without the consent and payment of remuneration for the alienation of rights, then you will have the opportunity to sue and recover compensation for the violation.

Asymmetry should be mutual

We also offer similar working conditions for unscrupulous authors. For example, the contract involved the creation of an exclusive design or other result. For its exclusive use, the customer pays a license payment of X money. And suddenly it turns out that the work is used by the designer himself in another place or the rights are transferred to another (two, three) customer. Run to court and prohibit the use? No, just the size of the license payment is automatically reduced to 1 ruble. Without handling claims, clarifying relationships, lawsuits, etc. Just under the contract.

Call to action

We would like to invite the respected community to participate in the comments on the global formulation of the problem - the asymmetrization of model contracts. At the same time, it should be understood that this asymmetry must be specifically (without a market) justified. Otherwise, the client’s lawyer will simply nagig erase these points and will be left with the choice of “sign as it is or sit without an order.”



Share your positive and negative experiences: when does a typical symmetrical circuit stop working or even turn you on? We would like to issue asymmetric contracts for you by the end of winter and now is the time to assign the task to Specially Trained Lawyers.



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Kirill Gotovtsev, Kirill Mityagin