𝗜𝘀 𝗜𝘁 𝗮 𝗖𝗼𝗻𝘁𝗿𝗮𝗰𝘁, 𝗼𝗿 𝗜𝘀 𝗜𝘁 𝗮 𝗠𝗮𝗻𝘂𝗮𝗹?

Still with the bakery, still key lime season. Wrinkle 004 was about keeping a clean contract map - knowing which agreements govern which products. This one is about a specific thing that map keeps flushing out: documents pretending to be contracts.

My advice? Ask the harder question about anything in your legally binding stack: is this a contract, or is it a manual?

An operational manual has a place. A user shouldn't try to steam salmon in the dishwasher because that's outside the intended use case and saying so is legitimate. (Yes, I know the salmon can actually come out tasting delicious – what magic is this?) But the document that tells you how to start a dishwashing cycle and where to put the detergent is not a contract. So, it shouldn't be cited as one in your end-user license agreement.

A manual dressed up as a contract creates obligations nobody meant to take on - especially when the "manual" is a living web page the vendor can rewrite at will. If your binding legal agreement incorporates a document by reference and that document changes unilaterally, the buyer may have agreed to terms that didn't exist when you signed.

And here's the enforceability trap that cuts the other way. Asking me to agree to obligations and risk allocation without specifying them and without a fair chance to review them may not produce a real agreement at all. Terms scattered across links I have to hunt for sit on shaky ground. Incorporation by reference generally requires a clear reference and reasonable access to what's incorporated. If you hid the ball, you may not have the term you think you have. If you don't have an order of precedence clause, it may cut against what you thought you were building as well.

The fix: keep operational docs out of the binding four corners unless you actually intend them to bind. It is fine to reference them as an anchor to your liabilities (i.e.- your company is only saying the dishwasher will wash dishes if you put in detergent). But, it should not be treated as another legal agreement.

Wrinkle 006 next...
‍