My Way Or The Highway – There Is Only One Way To Write Our Agreement

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Stubbornness. Unwillingness to listen. Often wrong but never in doubt. Preconceived notions. OK, today’s posting will qualify as a rant. As such, our aim is to keep it short.

Do you want to make a deal or does it have to be written the one and only way you’ve conceived as the “right way” to say it in the agreement? Though Ruminations, opinionated as we are, strives to avoid “absolutes,” we can’t do so with the following: There is always more than one way to properly express an agreement that has been reached. If that is true, and we’ll fight anyone who challenges us (but, if you are right, we’ll find another way to express the same thought), then why do we resist stepping back and “writing it again, though differently”?

We don’t care how long someone “has been doing this.” Forty plus years ago in a different life, we had a shipping manager who, on a daily basis, would express his competence by telling everyone: “I’ve got 25 years of experience in shipping.” Every day, we’d say: “[Name], yes, that’s one year over and over 25 times.” Only because we remained friends could we have that daily dialog. Forty plus years of experience is valuable especially because with longevity in rank should come wisdom, not arrogance.

It’s time to drag out two long-time favorite quotations from On Liberty, a book length essay by John Stuart Mill:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

and

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them…he must know them in their most plausible and persuasive form.

We’ve said this before: “Sometimes one or both of us is wrong.” Sometimes we really don’t have the better (or “only”) way to write an agreement. If we don’t know the law or don’t know the facts, it isn’t a crime to say: “let me check.” We don’t have to accept what the “other side” is telling us to be the “law” or the “facts,” but we do have an obligation to “check it out.” If we can’t correctly explain to the proponent of “how the law would treat this,” then we can’t be sure we really know how the law would be applied in such a situation. The real test of whether we know the applicable law is whether we can figure out why the other person is mistaken, not just “that” the other person is mistaken. Yes, if we can’t explain the basis for the error, perhaps we don’t really know the “law.” There is no shame is revisiting what we should know in the first place. The benefit is: “the clearer perception and livelier impression of truth, produced by its collision with error.” [That’s the wisdom of Mill’s statement.]

Here’s the bottom line for today. Let’s have respect for each other in negotiations and in crafting documents. It doesn’t have to be my way or the highway. There are few (probably, no) absolutes when it comes to making and documenting a deal. Loosen up. Recall the Voltaire quotation from our June 7, 2015 blog posting: “’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.]”

While we are at it, i.e., using abundant quoted material to let others write most of today’s posting, here is something we saw about a week ago. It applies to blog commentary as well as to book reviews. The “speaker” is Pamela Paul, the editor of The New York Times Book Review and she is responding to an interview question about objectivity:

There isn’t really any such thing as an objective book review, only an honest book review; book criticism is an inherently subjective enterprise. We cannot operate by the same standards of objectivity that hold for reporters at the rest of The Times. Nor would our readers necessarily want us to. Good criticism happens when a writer engages thoroughly with a book, wrestling with its contents, taking apart its arguments, applauding its successes and noting its failures or omissions.

Those same thoughts apply to comments from our readers. Feel free to argue with us, to expand on our thoughts, and to add your own. Ruminations was conceived to trigger a discussion among real estate professionals. So, feel free to express your own honest opinion by using the “Leave a Reply” box below.

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  1. Randall Gunn says:

    This is just another way to express the axiom that every business person knows, there are attorneys who make a deal and those who break a deal.. You know who they are and use the deal breakers at your own peril. In law school I didn’t make the most friends when I would say you could turn a business person into an attorney but not all attorney’s could be turned into a business person. Same principle.

  2. “my way or the high way”
    There are so many idiosyncrasies and hidden agendas in negotiations, we cannot “show our hand” and nor should we, the legal is just but one on the cards we must either “play” or “hold”.

  3. I can’t tell you how many deals that have been killed because of certain landlords that won’t agree to change their lease documents in any way.

    Sometimes it’s as simple as a landlord wanting to use a preprinted form and being cheap and not wanting to hire an attorney to review proposed changes. Sometimes the landlord thinks he has the clout to require the tenant to sign because he thinks the tenant has limited option. And some times it just ego involved and who knows what else.

    Most times I recommend against the deal and they don’t happen when landlords won’t change their forms to make them reasonable where necessary.

    I have had good success with some of these landlords in explaining in great detail why the lease is unfair and exposes a tenant to financially and legally in absurd ways and it turns out in many of these cases the landlord didn’t even know what their lease meant and they will agree to make changes.

    But landlords in my opinion are foolish to kill a deal over a tenant who is asking for reasonable changes.

  4. I offer a slightly different slant. Often, when I raise a point in a negotiation the other person insists that “the lease already says that.” Well if I felt comfortable that it did, I wouldn’t have raised the point. So, I’ll offer to add or amplify (but not replace) what the other person said with my own words – “for the avoidance of doubt” as the expression goes. A little redundancy is good for the soul. It may make the document a little longer but clearer in its intent.

  5. I really enjoyed your article. However, try as you might, there will always be some situations where there will be the need to draw a line in the sand and declare “My way or the Highway!”

  6. In my experience there is almost always a way to address the underlying concerns of a sticking point, with amplification or clarification and at least a minimal willingness to find a compromise. I believe it is often the case that where there is no middle ground/compromise (e.g., standards of negligence) that the underlying issue is allocating risk. This is where we as advisers can offer the highest level of value-add (and perhaps be most exposed to personal professional risk) by helping to quantify the risk/reward of agreeing to the less favorable provision(s) in the context of the overall benefits of making the deal – how important is this location/building/space, at this point in time, with the business terms agreed upon to your business, compared to the potential of the events contemplated in the lease provisions occurring. This can get pretty far into the fuzzy grey world of iterated, dependent scenarios, and sometimes there really is no choice due to the degree of risk. But the exercise is at the very least worth doing if the particular deal is at all important.

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