Why traditional drafting persists (even when it is not required)
One reason problematic contracts persist - even though most people would agree that they are neither optimal nor desirable - is what we call dark contractual legacy.
Contracts are rarely designed from scratch. Instead, they are based on inherited templates, clause libraries, and drafting conventions. Over time, this inheritance creates a self-reinforcing cycle:
- safeguarding, liabilities and remedies take precedence over performance and collaboration
- sustainability requirements are added as generic “bolt-ons” rather than being meaningfully integrated
- no one takes responsibility for coherence across the contractual package
- commitments become unrealistic, one-sided or impossible to monitor in practice
As this cycle repeats, familiarity becomes a trap: “this is how contracts are done”. The legacy style persists when
- templates and model clauses are reused without critical evaluation
- inherited drafting habits feel “safe” and familiar
- contract lifecycle tools encourage copy-paste standardisation
- commitments are not calibrated to their intended purpose, audience or impact
The result is contracts that look “legal” and “familiar” but perform poorly as tools for sustainability communication, collaboration and accountability in practice.
If inherited templates and drafting habits are not recognized, changes to language alone rarely make a difference. This helps explain why many well-intended contract improvements fail, and the same problems will continue to reappear.
Module 4 shows how contractual legacy can be made visible and deliberately redesigned to support how contracts are meant to work in practice.