Our key insights are recorded below and any errors are attributable to the authors.
We also note that conveyancers have status as a separate class of professionals who, along with lawyers, can effect changes to the title of land in New Zealand’s land registration system. It is interesting to consider how predictable coded interpretations of the law might enhance the ability of non-lawyers to become specialists in legal tasks traditionally reserved for legal practitioners.
We also note that no individual or agency carries any legal liability for the accuracy of the document. The responsibility for providing legal advice and meeting client obligations still lies with legal practitioners. Any person who transacts using the Agreement without taking legal advice risks contractual dispute. Equally, it is possible for additional clauses to be added to the agreement that might do undermine the integrity of the agreement as a whole: for example, an additional clause might contravene one of the standard clauses in a way that does not clearly indicate how that inconsistency should be resolved.
Our primary interest in the ADLS Agreement is that it illustrates the wider value of exceptionally reliable reproducible legal instruments, which nevertheless are only non-authoritative interpretations of how the law works. Parties attempting to create law as code models should pay particular attention to the following points, which we believe are integral to the success of the ADLS Agreement:
The Agreement creates a reliable and dependable legal environment within which parties can transact. It does not exhaustively state the law, nor is it held up as having greater authority than the other primary legal sources (or even secondary legal sources in the form of academic commentary) that inform its drafting. It is reproducible and scalable in the way that many copies of it can be produced and used rapidly.
Though noteworthy for its effectiveness and widespread adoption, the Agreement is only one example of legal ‘models’ in current use. There are a range of other, similar devices for use in legal context, including government-authored forms like the standard residential tenancies agreement produced by tenancy services. We were informed that the Drafting and Precedents Committee of the ADLS has developed proficiency in drafting standard form legal agreements in the same way that we imagine better rules practitioners would develop greater expertise over time.
There is a competing standard form commercial lease agreement produced by the Property Council. This illustrates the way that differing legal interpretations can be codified in different ways for different groups, depending on their interests and the operational context of the instrument.
There is some recognition that the way such standard form agreements have been drafted leads to a particular balance of power in a legal relationship: specifically, the ADLS lease was perceived in the past to have favoured landlords’ interests to a greater extent than tenants’ interests.
Our thanks to Tim Jones and Joanna Pidgeon for sharing their extensive experience with the ADLS agreements and committee procedures including history, usage and drafting. ↩︎