Be at least as smart as a parking lot.
Time Commitment: 10 minutes.
The gist of this post is that everything is negotiable (except when it’s not). If you want a real world example to anchor that reality in your brain, read on.
A few weeks ago my wife (@sweetielamb) and I went out with some friends to Ybor City for Steve Bristol’s (@stevenbristol) birthday. We don’t get out to Ybor very often so I, being the terribly paranoid person that I am, was concerned about where we would park and whether our car would be safe. Nick and Stephanie (@nickstamas and @stephwunder) suggested a parking lot convenient to our first stop, so we headed there.
The parking lot was an open-air, single-level lot near the heart of Ybor’s nightlife. The lot had a single attendant and no fences or any other means of keeping people out (I’m going somewhere with this, I promise). My car was no safer there than anywhere else in Ybor as far as I could tell. But I was armed with some vestigial knowledge from law school: if I left my vehicle at the parking lot and something happened, the lot owners would probably have to help cover my losses (A side note: if you have any obsessive tendencies at all, don’t go to law school. It will ruin you). I gave the parking attendant our ten dollars, took a red ticket to put on my dashboard, and we caught up with everyone in time to see Steve get a birthday tattoo.
As was statistically predictable, nothing happened to my car that night, Steve completely drained Ybor of Patrón, and the sun came up the next morning. The unpleasant surprise didn’t come until a few days later when I took a second look at the red ticket the parking attendant had handed me.
The ticket had a serial number, some handwritten initials, and a block of legalese text. The text read something like the following:
By displaying this ticket, you agree to hold harmless the owner of this parking lot for any theft, loss, or any other damage to your vehicle. This agreement does not constitute a bailment.
Frustrated by my lack of attention to detail and my apparent exposure to all the risk Ybor had to offer, a fleeting wave of retroactive worry hit me.
The takeaways
As I came down from my baseless fit of fear, I was left with an important reminder: When you form a contract, you are the master of the agreement. You get to decide whether to accept or override default provisions of law, and you can make any agreement you want as long as it isn’t illegal. This creates the following correlating situations.
1. When the parties of a contract have unequal bargaining positions, the party in the better bargaining position tends to get away with whatever they want. In the example above, the parking lot in Ybor had a substantially superior bargaining position to mine. As a consequence, they could present their terms as a take-it-or-leave-it arrangement and they could take liberties with the fact that I was unlikely to quibble with or even read their terms before accepting them. These non-negotiable agreements are sometimes called contracts of adhesion, and the law imposes some reasonable limits to maintain sanity in the system. These limits tend to curtail overreaching provisions, but they don’t keep those provisions out of the agreement in the first place.
2. When the parties of a contract have relatively equal bargaining positions, the terms of the agreement are only limited by the parties’ creativity and by each party’s willingness to accept the other’s provisions. This means that if you are negotiating a typical contract, don’t consider any changes off the table until you’re met with serious resistance from the other party. For example, If you don’t want to accept canned indemnity language, then don’t. (more on indemnity…) If you want to get paid in Gold Krugerrands, say so. Don’t accept someone else’s “standard practice” or even the default operation of law if it doesn’t fit with what you want.
Because people are confronted with form contracts and contracts of adhesion so often, it seems like they frequently fail to assess what their bargaining position is before they begin to make an agreement. When that happens, they may end up agreeing to unfavorable terms without even realizing they had a choice. Don’t let that be you. Weigh your ability to dictate and negotiate terms and use whatever position you have the best way you can.
Be at least as smart as the parking lot.
