One of the most common question people search online related to contract negotiations on Answer the Public is, “Can you negotiate a contract after signing?” Since that is such a frequently researched topic on the internet, I am going to assume that there is probably quite a bit of buyer’s remorse out there in the world. And that people are getting into agreements that they end up not feeling good about performing or completing. Or the other party isn’t performing and there’s a risk of breach.
A Little Contract Law Background
Before we talk about potentially changing a contract after it is signed, let’s get a quick (legal but not legal advice) background about contracts. All contracts must contain a few “elements” or parts to be legally “enforceable.” These are “mutual assent,” “consideration,” and “lack of defenses.” In a nutshell, a legal contract needs two or more parties who are legally able to enter into a contract (not a minor, for example) who commit to and agree on all of the essential terms (like price), both sides are giving something in exchange they do not legally have to (like money for goods), and there isn’t any circumstance that would prevent the contract from being enforceable, like fraud.
If these are all present at the time you sign, or shake, or exchange hugs, the court would likely find a legally enforceable contract. Depending on the jurisdiction (you know a lawyer cannot write an article without the word “depends” or some form of it) verbal contracts are just as enforceable as written ones. So, for the purposes of our discussion here, we are going to start from the presumption that the contract you want to change is a legal contract and that it is fully executable and enforceable.
Changing Contract Terms through Modification
To modify a contract is to just change some terms. In most written agreements, there will be a statement that “any changes must be in writing and signed by all parties.” That’s a modification. The biggest thing about a modification is that both sides agree to the change or changes. Negotiating changes can be for one thing or for multiple things. And in some instances, new “consideration” may be required (such as more money) to make the modification legally enforceable. But I suspect if people thought they could get the other side to agree to a change in terms, they might not be researching “Can you negotiate a contract after signing?” on the internet.
Reformation and Recission
There are some legal remedies available after contracts are signed. These sometimes need to be sought in court. The first is called, “reformation” which is where the contract is rewritten to match the “intent” of the parties or to correct what we might call an “ambiguity.” You and the other party agree to buy and sell each other, “citrus fruit.” You intended to sell limes, he intended to buy lemons but you both agree that the contract was for “limons” (the hybrid), so the contract is rewritten or clarified so that the written agreement reflects the actual intent of the parties.
A recission is where we walk away from the contract entirely and pretend it never existed. Taking the same example above but this time you cannot agree on the citrus fruit, so the contract is “withdrawn” as if it never existed. This is because you intended limes, he intended lemons, you never agree, so there is no legally enforceable intent.
There are a few legal requirements around the use of reformation and recission, and if you were either the lemon or the lime person in this short example, please consult with an attorney to look at your options.
Should You Even Try to Change the Agreement?
When you are looking to change the terms of an agreement once it has been executed, negotiation, if possible, often results in the best outcome for everyone. In the current economic climate, I have helped numerous businesses rework a contract so both sides benefit. Maybe someone needs a longer payment plan or a different delivery date. When you are asking for a sit down to negotiate new terms, be clear about what you need and why.
There is also a percentage of us who might realize the contract we signed is flawed, but we aren’t going to try and change it. We’re the ones who will just, “suck it up” and not make a noise about it. Those of us who will not try to change “what it is” may do so because on balance, the change we would ask for does not actually make that much of a difference in the outcome. Or maybe there is a long-standing business relationship. Or hope for future business.
How did We Even Get Here?
Finally, I want to talk a little bit about how we get into these agreements in the first place. Many times, we get caught up with emotions or hope for an outcome; either can prevent us from reading closely the terms of an agreement. Even if we are engaged in the dryest and least emotional transactions, our trust in others can sometimes cause us to enter into an agreement that, well, we’re not happy with. This can happen when the parties to an agreement assume that what was discussed and agreed to in person or on the phone is memorialized properly in the contract writing. That is not always the case.
Why do I point these scenarios out? Because we’ve all gotten into agreements at one time or another that weren’t exactly what we expected or wanted. There is sometimes some shame around terms we agreed to that maybe we shouldn’t have, and sometimes we may feel stuck with a contract that doesn’t really serve us or is just outright not delivering the promise of the agreement.
It’s a good idea to have legal support and advice when you are navigating contracts for your life and business. If you have a contract agreement that isn’t serving you or your business, and you want to look at some type of renegotiation after signing, consider hiring an attorney to help you negotiate, draft and review any changes.
**Photo by energepic.com**