Why I stopped drafting contracts like fortresses

Every few weeks, a contract lands on my desk that looks more like a shield than an agreement. You can tell within a page. Every clause leans the same way, the indemnities are enormous, the disclaimers cover risks nobody in the deal will ever meet and the liability sits squarely on one side. I can almost picture the lawyer who drafted it - up late, trying to wall the client off from every danger that could possibly exist.

I understand the instinct, because I have had it myself. The client wants to feel safe and we want to give them that. A draft that gives away nothing feels like a job well done. It looks bold, it reads as airtight and the client is pleased. The trouble shows up later, when you picture the thing in front of a judge. A contract written to win everything is very often the one that cannot survive its first real fight.

Being protective and being enforceable are two different things and it is easy to mix them up. A clause that hands the client every advantage is also the clause a court is most likely to read against the client. The more one-sided the bargain, the harder a judge looks at it. And that hard look rarely helps the side that drafted it.

Our courts have never treated a signature as the end of the matter. We like to tell ourselves that consent settles things, that once both parties sign, the terms are final. It does not quite work like that. A contract can look completely consensual and still come undone if it offends basic fairness. Section 23 of the Indian Contract Act makes an agreement void where its object is opposed to public policy. Courts have used that section to reach terms that were trying to hide behind the language of free consent.

The case I keep going back to is Central Inland Water Transport Corporation v. Brojo Nath Ganguly. The Supreme Court struck down a service rule that let a public sector employer remove a permanent employee on three months notice or pay, with no reason given. It held that an unfair term in a contract between parties of very unequal strength could be treated as opposed to public policy and set aside. The signature did not protect the clause. It was the imbalance behind it that finished it.

I should be fair about where this stops. When two strong commercial parties sit across a table, each with its own lawyers, courts are slow to redo a bargain just because it later went badly for one of them. But a great deal of what we draft is not a meeting of equals. Employment terms, consumer agreements, vendor forms, tenancy papers and now the endless click-to-accept terms we all tap through online. In most of these, one side writes the rules and the other signs because they want the job or the product. That is the ground where fairness starts to matter and there is more of it every year.

This is where most of the trouble lives, in the standard form contract. One side writes the whole document, the other reads it if they are careful and signs because they want the deal to happen. Standard forms are not a problem in themselves - they save time and keep things consistent. The problem starts when the drafting side treats the form as a chance to take everything, trusting the signature at the bottom to carry it. In LIC of India v. Consumer Education and Research Centre, the Supreme Court made the point that where one party holds all the bargaining power and simply dictates the terms, a court will ask whether those terms are fair and will not rubber-stamp them just because the weaker side signed.

There is a second rule that catches the over-protective draft. Contra proferentem means that when a clause is unclear, the doubt is read against whoever wrote it. Think about what that does to the lawyer who tries too hard. You write a sweeping clause, pile on conditions and carve-outs, stretch the words to cover every angle and somewhere the meaning goes soft. Then the dispute arrives and the court does not give you the benefit of the doubt; it gives it to the other side. So you can reach for too much, in language you yourself control, and end up holding less than you started with.

So what makes a contract genuinely strong? In my experience, it is close to the opposite of what the fortress drafter assumes. A good contract spreads the risk, putting each one with the party best placed to carry it. A bad one dumps the whole weight on a single side and quietly hopes that side never reads carefully or never goes to court. The strange part is that the one-sided draft is the weaker document. Loading everything onto one party gives that party every reason to fight and a court every reason to step in. It costs you something before any dispute as well, because a contract that openly tries to take everything tells the other side how little they are trusted. People honour a deal they feel is fair to them far more readily than one they feel cornered by.

So these days, when I draft or vet an agreement, I run through a few plain questions. Is the risk shared in a way that makes sense, so that whoever is best placed to bear a loss is the one who carries it? Is the language plain enough that I can read a clause once and know what it means, because if I cannot, a judge will not either? Are the disclaimers and indemnities realistic, or have we tried to shut out things the law will never let us exclude, which only makes the clause look like an overreach waiting to be trimmed? And how will a dispute actually be resolved, because an arbitration clause drawn so heavily in one party's favour, with the seat and the forum and the appointment process all tilted the same way, ends up being a liability rather than a safeguard.

Underneath all of this is a question about what we are really doing when we sit down to write an agreement. The urge to build a fortress comes from a decent place - we want to protect the people who trust us with their affairs. But a fortress is built for a war and most contracts are not headed for war. They exist to make a relationship work, to let two people do business with some confidence about what happens if things slip off course. A contract both sides can live with is one both sides are far more likely to honour and far less likely to drag into litigation. There is nothing soft about a balanced draft. It is usually the one that lasts.

I have started to think of drafting less as a contest and more as a kind of engineering. The real question is not how much I can squeeze out of the other side on paper. It is whether the structure holds under load, when the deal sours, when a payment is missed, when a deadline slips, when all the warmth at signing has gone cold. A document that gets through that moment is worth far more to a client than one that looked unbeatable on the day it was signed and then buckled the first time it was leaned on.

None of this is an argument for being timid. We should still protect our clients with everything the law allows. What changes is how we picture that protection. The strongest cover is not the clause that grabs everything; it is the contract that actually works, the one a court will enforce because nothing in it offends fairness, nothing is murky enough to be turned around on us and nothing is so one-sided that it is begging to be struck down. The aim is not a fortress. It is a contract that is sound in law so it survives a challenge, fair enough commercially that both sides have a reason to keep it and practical enough to be carried out in the messy world where deals are actually done. Get those three right and you will not need a fortress. You will have something better: an agreement that holds.

Joel Kenneth Johnson is an advocate and Supreme Court empanelled arbitrator and mediator.