One technique Ruminations and other blogs use is to write only about what they know. That minimizes the risk of being wrong and gives the impression that the writer has figured everything out. Yes, that time-honored technique hides the truth.
If you’ve found the disclaimer at the bottom of our “front page,” you’ll see that our goal is to trigger a discussion or discussions. To a greater extent than we could have imagined, we’ve achieved some piece of that goal. We get comments on the Ruminations site and many more through Linked In and similar sites. We also get direct emails and telephone calls.
Today, in violation of the first principle revealed above, we’re going to step out of our blogger’s shell and confess our inability to know where to “draw the line” when it comes to preparing agreements or preparing comments (suggested changes) to those agreements. And, in keeping with the second principle above, we’re going to urge readers, as Ernest Tubb and Loretta Lynn sang (and Dean Martin closed his shows with), to “keep those cards and letters coming in.” That’s enough prologue. Here’s what we can’t figure out.
How “perfect” does the agreement (lease, mortgage, etc.) have to be? Where does one stop? We are sure that if we were still writing our leases, mortgages, and other agreements out as manuscripts, they’d be shorter and with far, far fewer post-writing “corrections” or changes. Even when these were typed as typewriters became common business machines after the 1860’s, legal documents, by reason of practicality, if not by necessity, still had to be shorter than today’s documents. Nowadays, there is no practical limit to the length of our documents. “Cut and Paste,” global replacement, “search,” “search and replace,” retained forms, and all other manner of technical help make it a cinch. Further, we no longer have to consume trees; we just rearrange electrons.
Just because we can do it, should we? Have we failed to accept Voltaire’s: “The best is the enemy of the good? [Yes, we know, that’s not how you would have quoted him. But, it wasn’t original with him. He republished the Italian expression: “Il meglio è l’inimico del bene.” Feel free to translate that for yourself.]
How often, in real life, does the exculpation limitation found in leases ever make a difference? On top of the rarity of this ever coming up in practice, how many landlords are there any more that aren’t single purpose entities? Yet, why do some of us feel obligated to tweak what is presented to us and then fight for our position? How many other common provisions in leases or other agreements are like that? How about “pieces” of an agreement. Is it necessary to increase (or decrease, as the case may be) every time period in the document put in front of us? If a lease says that the tenant has to furnish a copy of its insurance policy within 10 days after a request for it, why do we change that to 15 days when, had the document given 5 days to furnish it, we would have increased it to 10 days? Yes, Ruminations knows that there are times and circumstances when it really “needs” to be a certain number of days, such as “15,” but that’s not the point. If 10 is good enough, how about just leaving it.
Our readers are almost all “in this business” and you can’t be in the business beyond a few document negotiations without having experienced this going on. So, all of us can tell “war stories” about deals where this just went on and on. We don’t need to make a long list today.
What’s wrong with this? Well, it isn’t only “time and money,” it is that this kind of negotiating process leads to bad feelings between negotiators. Woe, that they meet again. Also, is that how we want spend our days?
There is a parable we heard a long time ago, but can’t find any source for it. That, however, has never stopped Ruminations. There is a story about a recently-graduated history scholar who set out by steamer to China with the intention of travelling the country and collecting a definitive list of cultural customs. Two years (730 days) later, he wrapped up the project and returned to the port for a return trip. At the inn before debarkation, he heard a story he had never heard before. He cancelled his return trip and went back to the hinterlands to track down that story and perhaps gather some more like it. A year later, now convinced he had done a very complete job, he returned to the same inn. The story repeats, and repeats, and repeats, and he has neither left China nor completed his book. One day it will be finished just the way he envisioned it. Just, not in our lifetime.
That parable (or story) might resonate with some readers, though not to the extent that it would have had their deal not get done, but it will resonate anyway.
[Did the Ruminations disclaimer say, “rambling”?] We read something about loneliness and remember some of it, though in a sketchy way. We’d like to give credit where credit is due, but can’t remember the author. So, with apologies to whoever said this (or something close to this), here we go. None of us has a monopoly on the best way to do something and we shouldn’t insist that others agree with us so that it is “our way.” Lets’ not get angry just because somebody questions us. It isn’t so just because we think it is so.
Translated to the world in which we negotiators and document craftspeople live, not every provision of an agreement has to change just because our way is “better.” First, it may not be better except in our own minds, and second, being “better,” doesn’t mean that the other alternative isn’t good.
Fifty years ago, this author solicited essays from CEOs of a bunch of major engineering and technical companies for inclusion in an undergraduate engineering school’s magazine. The response was overwhelming. Yes, some submissions were written by the company’s public relations department, but there were a goodly number that seemed to have been written specifically for us. The messages in all but one of those essays have been lost along with millions of grey cells, but one message still stands out. It wasn’t about “nose to the grind stone.” It wasn’t about “technical proficiency.” It wasn’t about any similar things. Its title was: “Think Green.” This particular CEO told us that, at the end of the day, the task wasn’t to win awards for the best design; it was to do a good job and one that makes “money” – yes, that kind of “green.” Isn’t that where we ought to be?
OK, here’s the epilogue. Readers, please share your thoughts about the question posed. How much is good enough? When do you stop the back and forth and make the deal? You can add your thoughts by doing so where we ask you to “Leave a Reply.”