Contracting and the Law: The Art of Interpretation

Posted on September 5, 2010

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As you know, I have through the PI Window on Business Show and Blog, as well as the PI Inquisitive Eye TV Channel been covering the story of William Melchert-Dinkel who I have called The Serial Suicide Killer.

In the most recent post titled “The Constitution is not a Suicide Pact: The questions and perhaps answers regarding The Serial Suicide Killer’s First Amendment Rights can be found in a statement by Abraham Lincoln” in which I sought to ascertain the viability of Melchert-Dinkel’s First Amendment defence, it became increasingly clear that the law is subject to circumstantial interpretation as much as it is to the adherence of recorded terms and conditions.

These collisions of seemingly contradictory points of interest can be found throughout American history including the Louisiana purchase, when in 1803, and going against his own personal belief, Thomas Jefferson signed the treaty about which he would later write:

“a strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

While perhaps not as far reaching as a Louisiana Purchase, the same issues of competing interests is what makes contracting, especially in a global marketplace, both daunting and even problematic for many purchasing professionals.

As a result, the penny-wise and pound foolish mindset of an adversarial negotiation is quickly ceding to the more collaborative goal of a win-win accord centered on a long-term partnership between buyer and supplier.

This is perhaps the core contracting principle that has been absent from the technology-centric flops of the past in that merely automating the access to legal terms and conditions does not necessarily mean that they will be effectively applied.

In short it is both the practical application of expertise and experience that produces the sought after best result outcome and ultimately determines the success or failure of a particular technological solution.

Although vendors often times take the lion’s share of the heat for failed initiatives, as Tim Cummins the CEO for the International Association of Contract and Commercial Management so aptly put it in a recent post to his Commitment Matters Blog “the biggest issue is a lack of imagination and aptitude by the user community,” which in the face of recent setbacks is tantamount to “a bad workman blaming his tools.”

Based on Cummins’ observations that “this is the problem on which we must focus,” before a company should even consider automating their contracting process, they should first gauge the level of understanding within their own enterprise, and how a particular vendor can provide needed insight in this critical area.

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Posted in: Commentary