Is a contract worth the paper its written on?

There are lots of things said about lawyers. Some say only half of them are right – because when you get to court one side must lose. That set me thinking about a situation I shall shortly be facing and the implications of pursuing a breach of contract.

I recently joined the board of a small company that spent a relatively large amount of its’ start up money on several legal documents including a contract for software services. The contract, signed by the software developer, is probably one of the best I’ve seen for protecting a company. It contains provisions I am sure the developer did not see or understand the consequences of, and it appears he did not take legal advice when he signed. Without going to law it has proved a useful tool to keep the developer up to standard, and the company has acted fairly and generously on occasion.

However what use is a contract if the developer won’t press the button? In other words does the contract help you if the guy simply is difficult? He has done things slowly, he has pretended things are much more complicated than they are, he has been evasive and hidden behind technical jargon, he has said in writing he’ll do one thing then flatly refused to do it without extra pay. He has charged extra for additional work that turns out to be part of his original contract obligations. He has denied any fault and doesn’t admit mistakes. He has even disappeared for days then pushed for acceptance of work that has not been tested. He has been unprofessional and without integrity.

Yet he hasn’t done enough on any one occasion to warrant legal action. Why? – because instructing lawyers is costly and in a small company that is a big consideration. Is the prize worth the pain and uncertainty? Can we be diverted from the need to concentrate on building the business? Okay the work could have been managed better on both sides but without doubt the developer has performed in bad faith often.

So what I’m wondering is this. The lawyers obviously believe they wrote a good contract. They were paid well for writing the contract. So if they stand by their work will they pursue the contract at no cost to us? Apparently not. I’m wondering why not? Should we as clients begin to demand this type of service, should we not expect the lawyers to back themselves and prove the service they provide at the outset is worth buying?

Any suggestions for a shake up of current practice?

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