Recently, someone raised a question: because I found a lawyer for drunk driving, I haven't yet reached the court stage, and I want to terminate the contract, and I suddenly found that the contract I drafted before was a "special legal service contract", not the "entrustment agreement" that I have seen conventionally, what is the impact, and what is the specific difference?
I'm afraid there are quite a few people who encounter such confusion.
If you have a need for legal services, go to a law firm to find a lawyer, and whether the other party gives you a special legal service contract or a commission agreement is not the key to the problem. It's like looking for a partner, a big beauty is standing there, her name is Diao Chan or Lu Bu, the name is basically not important, what you look at is the character and appearance. Character, do appearance matter?Important!But more important than that is gender, which is the basic attribute of the person.
The same is true for judging contracts. There is no need to confuse what the same name is called, but to take a good look at the specific terms of the contract. The entrustment does not conform to your wishes, whether the agreement on rights and obligations is unacceptable to you, whether the amount and payment method are consistent with your negotiation, whether there is an agreement on other fees, and how to terminate and other substantive issues are agreed. You only need to focus on substance, and there is no need to care too much about form.
In the matter of confirming legal relationships, rights and obligations, whether our courts or arbitration commissions are studying substantive agreements, rather than formal names, which is very reassuring. In practice, it cannot be ruled out that there is a name affecting the determination of the legal relationship, but the root cause is that there is a problem with the agreement itself.
This question reminds me of a long time ago when I drafted a "Senior Management Employment Agreement" for a company, and after the contract was drafted, it was sent to the company's in-house counsel, and when I saw this agreement again, its name became "Senior Management Employment Contract", but the word agreement was still used in the content. I'm a little curious about this, is there any essential difference between a contract and an agreement in this place?You have to change all the wording of the agreement to a contract to keep the text consistent.
So, I asked the legal counsel.
His answer was somewhat interesting, he said that all the relevant documents of our company use the word contract. For example, labor contracts, purchase contracts, and loan contracts, it feels awkward to use agreements here.
Don't say it. His statement made me feel like I wanted to praise him. Why?For an Authority, consistency of drafting, although it does not change the nature of the document itself, is indeed a rigorous approach. It's a pity that he only changed his face.
Let's go back to the issue of special legal service contracts and entrustment contracts.
There are also two types of agreements signed by our unit and the parties. One is called "Special Legal Service Contract", and the other is called "Entrustment Agreement". How do you distinguish it from each other in everyday use?
When you come to me and entrust me with a litigation case, all of them use the "Entrustment Agreement", because the content of the "Entrustment Agreement" we drafted is for litigation cases. Can you just change its name to "Special Legal Service Contract" and the content remains the same?Of course.
You come to me and ask me to issue a legal opinion for your business M&A. Then I will sign a "special legal service contract" with you, and you want me to make a set of structures for your assets and issue a legal opinion, and I will still let you sign a "special legal service contract". You came to me and talked to me about how to make a structural plan for the enterprise to achieve maximum control with the smallest equity, and I still asked you to sign the "Special Legal Service Contract". This contract is not about the first issue, what the parties want is their specific legal services. At this time, you change its name to "Entrustment Agreement", can you?As long as the content is clear, of course it can. It does not affect the determination of rights and obligations between you. But the name really doesn't quite fit.
To sum up, my suggestion is: to deal with all kinds of written documents by yourself, the name corresponds to the content as much as possible, and it is necessary to be objective, scientific and rigorous. But when we are faced with a document that has been drafted, our energy should be more to study the essence of its content, and there is nothing wrong with the substantive issues. Of course, you can also choose to laugh it off at a name that doesn't quite fit.