Why problematic contracts persist

One reason problematic contracts persist – even though most people would agree that they are neither optimal nor desirable – is what we call 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 implementation, performance, and collaboration.
• Sustainability-related clauses are added as generic “bolt-ons” rather than being meaningfully integrated.
• No one takes responsibility for coherence across the contract stack.
• Requirements and commitments become unfeasible, unrealistic, or impossible to monitor.

As a result, contracts may formally include sustainability-related requirements and commitments but fail to support their implementation 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, and
• requirements and commitments are expressed in ways that do not reflect their intended purpose or use in practice.

The result is contracts that look “legal” and “familiar” but fail to function as tools for communication, collaboration, implementation, and accountability.

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, allowing the same problems to reappear across contracts and supply chains.