They simply couldn’t get into their heads that there is a sliding scale in the quality of project delivery and that it’s important to hit the sweet spot on it.

At one end there is ‘Useless, this has made things worse, I’m not paying you at all, and in fact I’ll probably sue you.’, and at the other end there is ‘This is the best possible job that could have been done – no stone has been left unturned and the engineer is clearly capable of leaping tall buildings in a single bound.’. The difficulty is that neither is commercially workable – the first is clearly disastrous, and the second will probably make you a loss, or at best break even – which is no good for paying the bills.

What is needed is a happy half-way house where the customer is just slightly more than contented (i.e. he can see some quality in the work that is more than ‘average’ for the money he’s being asked to pay), but which doesn’t necessarily have all the finesse that a wine connoisseur will detect in a vintage bottle of Krug. It’s about the balance between customer happiness (for which read ‘propensity to come back next time he wants something and/or recommend you to someone else’) and cold, hard, cash. On a first job for a customer, you might err slightly – and I do only mean slightly towards the ‘tip top’ end of the spectrum.

(Incidentally, the ‘tip top’ job can be counter-productive too – if it takes longer than the customer wants then it may be perceived as wasting his time, which is Very Bad.)

What lessons can we learn from someone like this who now has a House memorial and a Medical University named after him? He still died of a beating in a crazy house, committed by a “friend” who took his job after his death, and up to his death was considered an “adulturing, alcoholic.” What will we do differently?

The reason people have contracts is to define and enforce expectations, and provide a legal remedy when things go wrong. To take the view that when things go wrong “we’ll sort it out between us” necessitates that you will agree with the other party what is the “right” thing to do when there is a problem in your agreement.

The difficulty with that approach is that the very fact that something has gone wrong is usually a sign that you haven’t agreed something properly – so what makes you think you’ll be able to sort it out, especially when there is potentially a large sum of money at stake? A woolly contract is therefore worse than no contract at all… If you’re going to work on trust that you can sort the problems out between you (I’d suggest you can’t in most circumstances, by the way) then why bother with a contract? Or, expressed in the alternative, if you don’t want an appropriate contract which helps you when things go wrong, what does that say about your perception of the value of what you’re contracting over?

I would say, however, that it is important to impose commercially appropriate limits on the effort put into the minutiae of the drafting. However, “We’ll sort it out amicably when things go wrong” is, in my submission, neither commercially workable nor appropriate! (If things have gone wrong, there is not a lot of chance of amicability!)

My final point is that I think your estimation of the risk of exposure due to inadequate drafting is at least an order of magnitude low, and that the seriousness of the consequences aren’t possible to quantify in the way that you’ve illustrated – so the overall risk would be unknown, but considerably more than you suggest. A missing factor is the value of the transaction – not just to you, but to the other party – because this has a significant effect on the absolute value of the risk when it materialises.

And don’t worry, I am – indeed – smiling

This is the rapid response you were expecting (hereinafter “the Response”).

A more fullsome response which will add to the Response will be forthcoming in due course when I have considered in more detail how to respond. In the meantime, I do hope the Response meets with your approval.

Yours faithfully,

etc. etc.