In international practice, it is customary to draw up a legal (legal) opinion on major transactions. In our country, such a service is not particularly common. However, some entities turn to specialists before concluding a contract. Let's look at the features and general rules for drawing up a legal opinion. A sample document will also be presented in the article.
What is it?
The legal opinion is the opinion of the lawyer about the transaction. Its main purpose is to reflect the risks of the upcoming contract. It is drawn up in writing. The legal opinion has a special structure. It consists of the following parts:
- Introduction
- Documents examined as part of a legal examination.
- Reservations.
- Conclusions.
- Restriction.
Due to the fact that in domestic practice counterparties usually do not apply for a legal opinion, a service of this kind is not included in the list of services of lawyers. Meanwhile, many entities work with foreign clients, so they have to draw up such a paper.
Verification of documents
Any person making major transactions needs not only to know the structure of the legal conclusion to the contract, but also to be able to read it correctly. It is not necessary to begin the study with an introduction, but with a list of documents. You should check whether all the papers were transferred to the law firm. According to general rules, the company will accept only those documents, information about which is present in the corresponding section of the conclusion. External lawyers, of course, cannot be sure of the completeness of the information, however, they rely on clients in this matter.
If there are papers that are not listed in the Documents section, but the information contained in them can have a significant impact on the content of the legal opinion, then they must be provided.
Important point
With particular care should be taken to the certificates provided by third parties or government agencies certifying documents. External lawyers also rely on them. However, if the information contained in such certificates is not true, the legal opinion may be incorrect.
Conclusions Section
This part of the legal opinion reflects the opinion of the specialist on the contract. The conclusions may have different wordings - clearly confirm the absence of violations and the validity of the agreement or reflect some restrictions.
The following conclusions are considered the most common:
- The agreement complies with the provisions of the law and is valid.
- The participants in the transaction have the legal capacity to conclude it, and their representatives are endowed with the necessary powers.
- The parties received all necessary permits.
- The choice of the rule of law and the court is valid.
However, if there are no restrictions in the “Conclusions” section, it is imperative to familiarize yourself with the information present in other paragraphs of the legal opinion. We are talking about the blocks “Reservations” and “Restrictions”. Let's look at them.
Reservations Section
It is information relied upon by an external lawyer. This information is not verified by a specialist, but is taken for granted. For example, if the decision of the general meeting was given to a lawyer for study, it is assumed by default that it was convened and held in accordance with applicable standards. In his conclusion, the lawyer makes a reservation. The client, in turn, can independently verify the fact of compliance by persons with the procedure for holding the general meeting. It should be borne in mind that, according to Russian law, if the procedure was not followed, then a major transaction approved by the meeting on paper may be invalidated.
If the reservation contains information on the legal capacity of the parties to the contract, the client himself must additionally verify the accuracy of this information. A transaction may be declared invalid if one of the parties does not have legal capacity.
Nuance
A reservation may also indicate a lack of complete information on a matter. In this case, there is a risk that the transaction is concluded without consideration by the parties of material circumstances. Therefore, in this case, too, the probability of recognition of its invalidity increases.
Limitations block
It represents specific reservations. They are made by lawyers who can influence the conclusions present in the conclusion. Let's figure it out.
Suppose an external lawyer gave a positive opinion, but in the section “Limitations” he indicated the presence of some court orders that were not consistent with general judicial practice. This in the future may mean that the court may not agree with the arguments on the validity of the transaction when considering a dispute. Accordingly, there is a risk of non-performance by the counterparty of its obligations.
Another example. In the "Conclusion" it can be said that the client's claims in the event of the bankruptcy of his counterparty will be considered in the same order as the claims of other commercial creditors. However, the “Limitations” may indicate that individual lenders have the primary right to satisfy their claims in accordance with the law.
Perhaps such. In the "Conclusions" the validity of the transaction is confirmed, and in the "Limitations" it is stipulated that there is no law enforcement practice under such agreements, as new legislation is in force.
Other information
Of particular importance is the section that provides a list of entities that can rely on an opinion. Consequently, persons not indicated in it cannot count on a document. This applies, inter alia, to head offices, companies requesting an opinion. The document must contain a reservation that it is provided not only directly to the customer, but also to its affiliates.
The issuance of the document is carried out on the day of its execution (the date is indicated on the form). Unless otherwise specified by the conclusion itself, lawyers should not update it in case of changes in legislation or in other circumstances that took place after the date of execution.
In the "Introduction" section, as a rule, the law is indicated on the basis of which the document is issued. The customer cannot rely on this paper if it enters into transactions under another law.
Additionally
It should be noted that lawyers have different approaches to the process of drawing up conclusions. Some experts prefer to draw up extended documents, to enter in them a lot of restrictions and reservations. This is done mainly to protect their reputation. Customers, in turn, prefer to receive short conclusions confirming the validity of transactions concluded by them.