The next issue that the parties should consider is the impact of a complementary agreement on rights and remedies, and in particular dispute resolution mechanisms. Too often, complementary agreements are drawn up without thinking adequately about what will happen to the project in the future. Sometimes the endorsement comes down to a simple exchange of letters and, all too often, the focus is on solving the immediate problem, rather than ensuring that the rest of the project goes smoothly. For example, problems may arise with respect to lengthening of time, deviations or additional work. There is a risk that the size or impact of the endorsement will not be clear in the event of delays or anomalies. One of the consequences of the economic turbulence is that many contracts and transactions are renegotiated in whole or in part. Sometimes it is because of commercial pressure and sometimes as a matter of choice. However, several issues must be considered by the parties before deciding on their new agreement. When the parties amend a contract in writing, it is generally easy for a party asserting its rights to prove the agreed amendment by referring to a variation agreement or the exchange of emails. Similarly, a party relying on an oral amendment should be able to determine how the amendment agreement was concluded. However, if one party says that a contract was different by moderate behaviour, things can be a little more complex.
In this case, the party resulting from the modification of the contract must demonstrate that there is a clear pattern of conduct that is inconsistent with the terms of the original contract and that is consistent only with the parties` agreement to change those conditions. In other words, a party will not be able to justify a change in behaviour if the parties had acted or acted exactly as they would have done in the absence of such an agreed amendment. It is therefore often very difficult to find that a contract has been altered by the behaviour, so it is wise for the parties to record the changes in writing in order to avoid disputes over the terms of their relationship. Complementary agreements are far from being a quick solution to certain business problems or needs. They must be carefully studied, thought out and elaborated if they are not to cause more problems than they solve. In a way, nothing is worse than a dispute over a settlement agreement or an endorsement, because the parties have, by their nature, tried to agree and conclude things and not spend money and administration time on litigation. Beware of exchanging letters or an agreement on the back of a package that cannot settle or dissolve anything. Second, the parties need to think about what lawyers call the “reflection” of the right case.