Duties of the contract drafter

Abstract

A drafter of contracts (drafter) holds a unique role in the contract life cycle and functions not only as a communicator, but also as an interpreter and an expert in legal knowledge. In the process of drafting of contracts, there may be bona fide mistakes. The common law provides several mechanisms to protect the contracting parties against such mistakes, including overcoming ambiguous language with the application of the contra proferentem rule; overcoming bona fide or intentional mistakes reflected in the written contract by means of applying to the court for rectification, and avoiding contractual liability, where poor document design has resulted in a iustus error. Bona fide mistakes are distinguished from “indifferent draftsmanship” or failure to fulfil a drafter’s professional and ethical duties. The article proposes a framework for the drafter’s professional and ethical duties, including upholding the values of the Constitution of the Republic of South Africa, 1996; acting in the interest of the drafter’s client, whilst maintaining professional and ethical standards; maintaining the expected standard of conduct; acting with honesty and integrity; acting lawfully and legally; avoiding a conflict of interest; maintaining the confidentiality of client information; maintaining professional independence; ensuring that appropriate fees are charged, and maintaining an adequate level of competencies and skills. Failure to adhere to the professional and ethical duties can have significant personal consequences for the drafter, which may include disciplinary action under the Legal Practice Act 28 of 2014 or even liability stemming from a breach of a statutory duty, breach of the contract between the drafter and client, or a delictual claim.