Commercial Contracts

Who should attend?

This course is intended for ..

• Managers responsible for purchasing products or services for their department or

company

• Executives involved in supplying products and services

• Project managers involved in the project contracting process or the procurement of

supplies and/ or services

• Commercial executives and managers

• Purchasing & sales staff

• Built environment staff contractors and professionals

• Marketing, supply chain, procurement, and sales staff and professionals
• Facilities, operations, leasing, property and asset managers and staff
• Contract and project managers, administrators and technical staff

Course Objectives
• Proactively manage contracts to support your corporate objectives

• Effectively define roles and responsibilities in the contract process

• Improve your negotiating skills

• Construct a mutually beneficial contract relationship

• Establish and secure your contractual objectives

• Integrate the core elements into a effective and cohesive contract

• Ensure that inherent risks are effectively identified and managed

• Structure and manage teams in large contracts to maximize performance

• Anticipate and avoid potential pitfalls through applying an impact analysis approach

Course Outline
1: Commercial contracts and the law
• Understanding the Role and Value of Contracts

• Overview of, and contract under, the South African Legal System
• National and international contracts
• Contracts and the law of persons, property law, delict, and legislation (including
Labour, Consumer, Credit, and Health and Safety Law)
 • Drafting: Understand how the above principles reflect in contract provisions

2: Commercial contracts in business and projects

• The contracting nature of the modern business
• Risk Management, the law of delict and contract
• Statutory changes to risk e.g. under the Consumer Protection Act
• Performance management’s contractual basis
• Understand how contrast are projects (the PMBokTM as a drafting scheme)
• How commercial processes implement contract management and administration.
3: Key contracting and contract law concepts
• The six requirement of a valid contract
• When is a contract void or voidable? An example of how this is relevant to drafting
Requests for Bids
• Specific contracts and their essential (defining terms)
• What terms are implied into the traditional contracts (sale, lease, services and works)
and how can you customise these to suite your companies risk appetite
• Contract, Natural Terms of Contract and Incidental
4: Parties to the contract – Contractual Capacity and Agency Law
• Contractual Capacity – Dealing with different entities (persons, firms, juristic persons,
joint ventures and agents)
• Agency, actual, implied and apparent or ostensible authority
• Agency by estoppel and the Turquand Rule
• Considering the principles that should be used by a business’s in establishing a
‘commitment management’ policy and guideline document.

5: Dealing with Illegality and Impossibility

• Force Majeure, illegality and severability
• Managing illegal, and impossible terms and situations
• Terms dealing with termination cause by force majeure and terminations for
convenience
• The approach of the courts in severing impossible or illegal provisions
• by the courts
• Clauses dealing with relative impossibility and hardship
6: Contractual Intent, Consideration and Agreement
• Contractual Intent and reliance
• “Consideration” under Anglo-American law its (re)application under the Consumer
Protection Act
• Offer and Acceptance
• Agreements relating to acceptance
• Tender and negotiation as contracting methods
• Mistake, misrepresentation, coercion and undue influence on contract validity
• Group Exercise 1: The battle of the forms
7: Formalities, formalisation and drafting
• Formalities prescribed by law
• Formalities prescribed by the parties
• The presumption against novation
• Amending contracts
• Contractual provisions for post contractual incorporation of programmes, change
management, extensions of time and pricing and service level specification
 • Understanding and using legal and business contract templates
• Group Exercise 2: A “letter of intent”

8: Termination and Breach

• How contracts end
• Termination for convenience clauses
• Termination for cause
• Damages and penalties
• The Conventional Penalties Act and the Apportionment of Damages Act
9: Risk and Pricing
• Incoterms and the express management of risk
• Specific terms aimed at risk management (indemnities, insurance, risk registers,
partnering and risk sharing)
• Managing risk: Acceptance, avoidance, transfer and control
• Pricing and risk
• Performance guarantees, indemnities, warranties
• Insolvency, confidentiality, restraint of trade,
• Intellectual property and other specific contract risk issues
10: Interpretation & Dispute resolution
• The rules of contract interpretation
• Negotiation, Mediation and Arbitration
• Understanding the litigation processes-its costs and risk
• International disputes
11: Implementing Commercial Contracts
• Understanding Both Buyers? and Sellers? Positions in the Tendering Process

• Effectively Managing Contracts Using a Project Approach

• The buyer and seller steps in the contract lifecycle

• Pre-award

• Award

• Post-award

• Understanding the contract lifecycle risk management process from the buyer and
seller viewpoints

• Understanding performance based service level agreement and the steps necessary
to implement and administer service level contracts

12: Negotiating Commercial Contracts

• Understating the success factors to successfully negotiate commercial contracts

• Understanding and implementing 10 best practices in planning for commercial

contract negotiations

• Understanding and implementing 10 best practices to conduct successful

 negotiations

• Understanding and implementing 10 post-negotiation best practices to ensure proper

contract formation and administration.