Abstract
Professor Nancy Kim is the ProFlowers Distinguished Professor of Internet Studies and Professor of Law at California Western School of Law and she is also visiting Professor at Rady School of Management at University of California, San Diego. Professor Kim has established a meritorious career by combing the academic and business-oriented viewpoints and The Fundamentals of Contract Law and Clauses: A Practical Approach, is a solid manifestation of it. Law can be a tool for businesses by preventing problems before they occur. The book is a guide to understanding what common contract clauses mean and how they might affect business transactions. Professor Kim draws correlations between contract clauses and contract doctrine providing a roadmap to creating, analyzing and understanding contracts.
The book is structured around a framework of common contract provisions. Various provisions are examined both from the perspectives of how they affect doctrine and how doctrine affects the application of these provisions. Using sample clause language provides a platform to identifying and explaining key contract law concepts. The reader learns how to read contracts, and rather than focusing on how disputes are resolved, the author focuses on how they can be prevented; in this way, compared to conventional contract law books, the book lives up to its promise to introduce a novel way to learn contract law that goes beyond simple case-based teaching.
The author tries to make abstract concepts more concrete. To do so, the book is structured around four key aspects of contract law: formation; defense; breach; and remedy. Then each chapter is further broken down into doctrinal concepts. However, rather than teaching doctrinal principles around each concept, Professor Kim outlines common clauses included in contracts to address each principle. This is important for anyone seeking to understand the background rules and contract law. The sample clauses include very little “legalese” and are easy to understand. The clause language is used to explain the complex legal cases and principles.
Professor Kim provides an analysis of clause intent, outlines caveats, and provides troubleshooting ideas and reflection prompts. She substantiates why the clause is included and why it is written in a certain way. Her approach has yielded a contract law book explaining legal language in ordinary English. “Good contract drafting requires more than knowledge of stylistic rules and conventions – it requires a solid understanding of the specific transactions, the intent and the motivations of the parties, and the background laws.” (p. 9) Taking court case highlights, reflecting on them, and providing the doctrinal concepts in the context of sample clauses works well for the purposes of the book. Court case outcomes are short snippets helping the reader not to get lost in legal jargon. Some court case examples provide opposite decisions by different courts on the same principle, driving the reader to analyze how to write language that is clear, to avoid leaving it up for court interpretation. The book really strives to teach drafting techniques that avoid litigation. Real life court cases are interesting and provide the extra insight to retain new information. The consistent clause by clause structure allows the reader to jump around, which is a benefit for practitioners needing a desktop guide to refer to.
A notable strength of the book is the real-life exercises scattered throughout asking the reader to stop and answer questions, referred to as “reflection prompts”. This further enhances comprehension and engages the reader in critical thinking. The book provides example clauses followed by a reflection prompt. Here is an example: “Reflection Prompt: Compare the language in the two Example Clauses above. Which clause contains more precise language? How would the referral fee be calculated (and what does “net revenue recognized” mean)? If you were representing Partner, would you request any changes to the language in the first Example Clause? Why? Does the language in the second Example Clause create an ambiguity?” (p. 39)
Apart from the focus on contracts (rather than contract law) and on preventive (rather than reactive) lawyering, a key element that differentiates this book from others in the field is its writing style and layout. The book is easy to read and the design gives a logical structure to contract law and doctrine. According to its Introduction, the book is written not only for law students but also business students, business lawyers, contracts managers and business people.
This book is about learning and teaching contract law. As a result, it follows legal reasoning rather than commercial reasoning, which may make it less appealing for a non-lawyer readership. However, the book can be an asset in changing how contracts and contract law are taught and beyond. It can even start changing how contracts are traditionally written, moving away from legalese and long black and white text to clearly written clause language that captures both parties’ intent. Other scholars have outlined similar approaches and several excellent articles have been recently published in the Journal of Strategic Contracting and Negotiation and elsewhere about simplifying contract language and making contracts more usable and readable. Professor Kim is one of the first to provide a hands-on “How to Guide” helping future drafters to think and act differently. It truly is a roadmap that can be used on a clause by clause basis as a teaching guide and even as a reference book for practitioners. The book can be recommended for both academics and practitioners in law, business and contract management fields. Contracts are legally binding documents and as such all stakeholders should understand the contract law principles underlying why contracts are written in a certain way. This book does so in a language a broad audience can adapt to their specific area of expertise. The approach of tying the doctrinal principles to common clauses seen in today’s contracts, along with hands on tools, is a very effective way to teach mastery.
The focus of the book is especially on US contract law. However, the way the book is built makes it suitable also for non-US readers. Contract clauses are to a considerable extent harmonized in international transactions. When seeking a thorough understanding of a foreign system it is probably optimal to use the point of view which is common for all systems – the contract clauses. This book makes it real. Therefore, Professor Kim's book is an important step in creating new ways to enhance international contract skills.