When drafting an agreement, the focus is often on topics such as (i) liability, (ii) retention of title, (iii) intellectual property, etc. This also sounds logical, as these are topics on which discussions often arise between parties.
But, when parties deal with these issues, parties skip a few important steps. One of those important steps is to establish what obligations parties have to each other. In other words, who does what?
Depending on type of agreement
There are different types of agreements. Depending on the type of agreement, sometimes the law stipulates what which party must do. However, these are mostly general obligations and often not specific to the cooperation in question.
To establish what you can and cannot include, it is important to first establish what kind of agreement the parties will enter into. For certain agreements, there is a statutory regulation, which cannot be deviated from in certain cases.
Who does what?
Once the legal framework is in place, parties can proceed with the agreements that see to the obligations of each party.
It is desirable to agree as clearly as possible what obligations the parties have reciprocally. For example: what a party must deliver, what quality the delivery must be, when delivery must take place, where delivery must take place, what must be paid, when payment must be made, etc.
What is useful to include is whether a party is allowed to use a subcontractor and, if so, on what terms.
What if?
Once the parties have agreed on what which party should do when, etc., it is then important for the parties to agree on the consequences if a party fails to fulfil its obligations or does not do so properly/timely.
Does a party have the opportunity to remedy a defect? May a party still deliver if a delivery is not made on time? What if a product is out of stock, may a replacement product be delivered? May the cooperation be terminated when a party fails to fulfil its obligations, not properly/timely, and if so under what conditions?
When parties have thought about this and put clear agreements on paper, it often prevents hassles afterwards.
Resumen
Often, parties have consulted with each other about cooperation, more specifically about what which party should do. The parties then put those agreements on paper, without doing so in a comprehensive manner.
One risk is that parties assume certain consequences of the obligations to be known, but that this turns out to be different afterwards. In such a case, as a party, you would have wanted things to be set out more comprehensively in the agreement anyway.
It is important to pay sufficient attention to writing down the obligations of the parties and the consequences of those obligations (especially when an obligation is not or not properly performed). This is to prevent you from assuming certain things when it turns out afterwards that they are not.