The best legal protection
It seems that some of the best protection from bad business and personal relationships may have a mystical connection.
Corpus Christi means ‘body of Christ’ in Latin. It is also the name of a city in Texas. Many years back, I had travelled to Corpus Christi, some 14000 kilometres from South Africa, to negotiate an international distribution agreement. The negotiations went smoothly and terms were agreed. Before leaving, I asked my counterpart whether our respective legal firms should draft the written agreement. “There will be no written agreement”, he responded earnestly, then stood up, smiled broadly, held out his hand and said; “We aren’t signing anything... dictum meum pactum”.
My heart sank. Dictum meum pactum translates to ‘my word is my bond.’ The little Latin I knew was enough to question whether I had trav- elled nearly halfway around the world for nothing. The famous phrase rang in my ears; ‘A verbal agreement isn’t worth the paper it is written on.’ With no signed agreement, how would I explain this to the Board in Johannesburg?
In your adult life, you are guaranteed to be faced with disagreements or legal action. There are differences of opinion, errant debtors, nasty landlords, tenants-from-hell and in personal disputes, everything from divorces to insurance claims which have been refuted. There are only three possible reasons for disputes: money, validation or power. This is part of the human condition.
Yet a lesser known fact is that billions of transactions occur every day which involve unwritten agreements or just an accepted understanding. Agreements can be verbal or silent and can be expressed in numerous ways; anything from body language, ritual, heritage or even the tone of one’s voice. For example, catching a bus involves many non-verbal understandings; such as paying bus fare, being transported to a destination, not distracting the driver or rummaging through other people’s parcels.
Beware of the geologist with X-Ray eyes, or the attorney who promises you victory.
The certain way to triumph in litigation is to avoid it all together. This is because of the difference between the romanticism of ‘having your day in court’ and the harsher realities of our legal system. Litigation is not about welldressed, sharp-witted lawyers on a scripted TV series. The reality is that to institute or oppose civil legal action is timeconsuming, frustrating and often costs more to conclude that the original claim. A business transaction can occur in a split second of electronic input, yet to resolve a commercial dispute can take years. Laws and statutes in South Africa have evolved. They are often judged by parameters of equity (where parties are provided abstract rights), rather than predictable and rational justice. Cases may be won or lost on technicalities, delay tactics, or a court system bogged down in caseload and bureaucracy. A judgement in your favour is often the start of a further journey into claims, attachment orders or processes to ensure compensation. Unfortunately in South Africa, the allure of money and power also extends to the nature of judicial personnel such as sheriffs, record keepers and clerks.
So how does one ensure a predictable outcome to a business or personal agreement? There are no guarantees, but here is a time-proven method: Deal only with those who can be implicitly trusted to do as they promise. Seek out the reasonable person. Seek out those who make genuine amends for their mistakes. Take your time to become familiar with whom your are dealing. Consider alternative dispute resolution mechanisms which are relevant. Use personal referrals, character references, testimonials and perhaps the most important of all; trust your gut feel and sense of confidence. I term it the’ civic system’, where the collective wisdom and experience of people is leveraged to gauge trustworthiness and moral character. Reputational currency and compliance has great worth. It is up to the individual to protect their own character value. That can be a lifetime guarantee.
Far from being crucified in Corpus Christi, in the days following the handshake agreement, the first shipment was ordered and the business relationship flourished. And years later, I left the corporate world and my Texan counterpart retired. There is still no written agreement between the two companies, just dictum meum pactum. A bond which transcends lines on a map. And words which rise beyond courts of law; and far above the spires of the shrines of Corpus Christi.