Donald Rumsfeld’s famous Known, and Unknown, Unknowns aren’t as silly and obscure as they may appear. Anyone running a business and entering into contracts would do well to think about what they know about their contracts and the future and what they do not know.
Losing money because you didn’t know about something is not unusual. For example you may still be bound to contract even if a statute you were unaware of causes the contract to make a large loss. If that happens to your business the odds are you won’t let it happen again and your next contract will take that new knowledge into account; In Rumsfeld’s classification the issue that caused you loss has changed from an Unknown UnKnown (something you didn’t know you didn’t know) into something you now know.
Known Unknowns include things in the future you know are uncertain. Business and contracts are all about risk and uncertainty (Unknown facts and events). For example you know that on any given day there is risk that someone will be ill, that a vehicle may break down, that materials critical to your business may not be delivered on time or will go up in price or that there is a risk that you won’t be paid by one of your customers. These risks are a species of Known Unknowns – future events that you know are uncertain/unknown. You can and should put terms in your contracts to manage these kinds of risks and actively review your contracts to make sure they fully reflect what you know and what you know you don’t know.
The potentially critical risks to your business come from the Unknown Unknowns, the icebergs below the water that you don’t see and you don’t expect. Often, in the legal sphere, you will be unaware of a Regulation or the effect of a contractual term until it is too late – you cannot manage a risk if you don’t know about it.
To help businesses minimise those statutory and contractual Unknown Unknowns we are starting a series of free webinars aimed, not at detailed analysis of the law, but at raising practical commercial awareness of the legal issues affecting businesses. The webinars will give you a regular heads-up not only of new law but of stuff that has been around for a while but still causes the most problems. It will be about law only so far as it is important to the effective operation of your business. We hope the delegates will share their own experiences with each other. To register for the next seminar on 12th March 2012 please click here. If there is a particular topic you would like to be covered please let us know.
Jonathan Waters has over 12 years of experience advising businesses in relation to commercial disputes and how to avoid or resolve them. He has a particular interest in construction law and adjudication, and he is currently studying for an Msc in Construction Law & Dispute Resolution at King’s College. Before starting Helix Law, he was the partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. He has a degree in Business Administration and before qualifying as a solicitor he worked in industry and investment banking for over a decade.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.