An increased risk of invalidation of Agile contracts?
Updated on 28.01.2022
One of the main advantages of Agile methods is the flexibility they offer.
However, the principles of contract law must not be lost sight of when it comes to contracting an Agile project.
The requirement of a specific or determinable object
In order for a contract to be valid, it must relate to a specific or at least determinable object based on the elements covered by the contract.
If it can be accepted that the subject matter is not fully determined at the time of formation of the contract, it must at least meet the requirement of determinability.
The subject matter is considered determinable as soon as it can be specified on the basis of objective elements contained in the contract. If a new agreement of the parties is necessary to arrive at this determination, the requirement is not fulfilled. This means that the validity of the contract can be challenged.
What about in an Agile contract?
The particular context of the purpose of an Agile contract
In the context of an Agile project, the objective of the parties is precisely not to lock the scope of the services into a narrow and fixed definition at the time of the conclusion of the contract.
Does this mean that the Agile contract covers an indeterminate and indeterminable object?
This must be qualified. The object of the Agile contract is the realization of services aimed at achieving an objective defined in the Product Vision. It is true that the Product Backlog is not defined in a precise manner when the contract is formed. The final result of the services is not defined, but the type of services and the objective are. Thus, it seems to us erroneous to maintain that the object would not be sufficiently delimited to constitute a valid contract.
The fact that
- the final deliverable is not defined in detail at the beginning of the contract and
- evolves over the course of the development sprints
does not call this analysis into question either.
Indeed, the purpose of the contract is to provide a specific type of service in order to achieve an objective by following an Agile process. These different elements ensure a delimitation of the contractual object that fulfills the validity requirements of the Agile contract.
It does not seem to us that the Agile contract is more likely to be cancelled for lack of purpose than another contract, as long as the nature of the services and the objectives of the project are defined initially.
If Agile methods allow the product to evolve during the execution phase of the project, is this open approach likely to increase the risks of invalidity of the contract?
As long as the object is clearly expressed from an Agile perspective, it seems to us that the contract will meet the validity requirements of the Civil Code.
A coherent definition of the contractual object in relation to the project management approach intended by the parties should therefore not increase the risks in this respect.
If you want to know more about this subject, please visit the page dedicated to Agile methods!