Who draws up the contract depends on the kind of deal and who is making the offer. In residential real estate, the buyer’s agent typically prepares the initial purchase agreement. In sales of goods or services, the seller or service provider supplies the contract. In large business transactions, the party with the most to protect often insists on writing the first draft. No law assigns the job to one side, but whoever holds the pen sets the framework and takes on a specific legal risk.
Real Estate: The Buyer’s Side Writes the Offer
In most residential transactions, the buyer’s real estate agent prepares the initial purchase agreement using a standard form from a local or state real estate association. The agent fills in the specifics: price, closing date, financing and inspection contingencies, and any special requests. In states that require attorney involvement in closings, such as New York and Connecticut, the buyer’s attorney may draft or substantially revise that initial document instead.
The seller then reviews the offer, and the seller’s agent or attorney proposes changes through a counteroffer. Either side can redline terms, but the initial framework comes from the buyer’s side because the buyer is the one making the offer.
One of the most consequential provisions is the earnest money clause. The deposit goes into an escrow account after both parties sign, and the contract should spell out exactly when the buyer can get it back and when the seller keeps it. If the buyer backs out for a reason the contract doesn’t cover, the deposit is typically forfeited.1Legal Information Institute. Earnest Payment Whoever drafts gets the first crack at defining those conditions, which is why buyers want their agent writing the offer and sellers want their attorney reviewing it carefully before signing.
Goods and Services: The Seller or Provider Writes the Contract
When you hire a contractor, subscribe to software, or order goods from a supplier, the business selling to you presents the contract. Vendors and service providers have standard terms they use with every customer, covering payment schedules, warranties, liability limits, and cancellation policies. You either sign those terms or negotiate changes before signing.
This makes practical sense. The seller has already paid for legal review of its standard agreement, and offering consistent terms to every customer reduces its risk. But it means the buyer is working from the other side’s playbook. If you’re the buyer in a significant transaction, having your own attorney review the seller’s terms before signing is the single most cost-effective way to protect yourself.
When Both Sides Have Standard Terms
Problems arise when both parties use their own pre-printed forms with conflicting terms. A buyer sends a purchase order with one set of conditions, and the seller responds with an order acknowledgment containing different ones. Under the Uniform Commercial Code, an acceptance that adds or changes terms still counts as acceptance between merchants, but conflicting terms don’t automatically become part of the deal. If the parties perform despite the paperwork mismatch, the contract consists of the terms both forms agree on, plus any gap-filling rules from the UCC. This is commonly called the “battle of the forms.” If you do repeat transactions with another business, getting a single signed agreement in place early avoids it entirely.
Complex Deals: Whoever Has More at Stake
For mergers, acquisitions, joint ventures, and other high-dollar business transactions, the question of who drafts is itself a negotiation point. The party with more leverage or more to protect often insists on preparing the first draft. In an acquisition, the buyer’s counsel frequently drafts because the buyer is taking on the seller’s liabilities and needs detailed representations and warranties. In a financing deal, the lender’s counsel almost always drafts because the lender’s money is at risk.
There’s a genuine tactical advantage to going first. The initial drafter sets the document’s structure, decides which topics get detailed treatment, and establishes default positions the other side has to object to or live with. Negotiating from someone else’s draft means playing defense: finding problems rather than building the framework. Experienced deal lawyers know this, which is why the drafting question sometimes gets as much attention as the commercial terms themselves.
The Legal Risk of Being the Drafter
Writing the contract gives you structural advantage but creates a specific legal exposure. Under a long-standing rule called contra proferentem, any ambiguous language is interpreted against the party who wrote it.2LII / Legal Information Institute. Contra Proferentem The logic is simple: you had every opportunity to make the language clear, so if it isn’t, you bear the consequences. This doctrine shows up constantly in insurance disputes, where the insurer drafted the policy and a court reads a vague exclusion in the policyholder’s favor.
For the non-drafting party, this rule provides a safety net against unclear provisions. For the drafter, it’s a reason to write precise, specific language rather than vague terms that might be stretched later. If you’re preparing the contract, investing in clear drafting up front is cheaper than litigating ambiguity later.
When the Law Requires a Written Contract at All
For some transactions, who writes the contract matters less than whether a written one exists. The Statute of Frauds requires certain categories of agreements to be in writing and signed to be enforceable. The specific list varies somewhat by state, but it generally includes:
- Real estate transactions, including sales, long-term leases, and easements.
- Agreements that by their terms cannot be fully performed within one year.
- Sales of goods worth $500 or more. Under the UCC, a contract at or above this threshold needs a signed writing indicating the quantity.3Legal Information Institute (LII) at Cornell Law School. UCC 2-201 Formal Requirements Statute of Frauds
- Guarantees of another person’s debt.
- Agreements made in consideration of marriage, including prenuptial agreements.
Leases follow a similar principle. Under the UCC, a lease isn’t enforceable without a signed writing if total payments reach $1,000 or more.4Cornell University Law School. UCC 2A-201 Statute of Frauds The writing doesn’t need to be polished, but it has to identify the parties, describe what’s being sold or leased, state the quantity, and be signed by the party you’d want to enforce it against. A handshake deal for a $5,000 equipment purchase simply isn’t enforceable in court without something in writing.
When You Should Have an Attorney Draw It Up
You can write your own contracts for your own transactions. What you generally can’t do is draft legal documents for other people as a business service unless you’re a licensed attorney. Most states treat that as the practice of law, and doing so without a license can result in fines, loss of professional licenses, and civil liability. Real estate agents can fill in blanks on association-approved standard forms, but they cross the line if they modify attorney-drafted provisions, interpret contract terms for clients, or draft custom clauses.
Beyond the unauthorized-practice question, certain transactions justify an attorney regardless of which side you’re on:
- Real estate purchases, where title issues, contingency language, and earnest money provisions need careful review.
- Business acquisitions, where the representations, warranties, and indemnification provisions are where deals go wrong years later. This is not template territory.
- Contracts involving intellectual property. If you’re paying for creative work or licensing technology, getting the ownership and licensing terms wrong can cost far more than the attorney’s fee. Under federal copyright law, a “work made for hire” belongs to the party who commissioned it rather than the creator, but for independent contractors the work qualifies only if it falls into one of nine specific categories listed in the Copyright Act and the parties have signed a written agreement designating it as work for hire before the work begins. Without that language, the freelancer owns the copyright no matter how much you paid.5Copyright.gov. Chapter 2 Copyright Ownership and Transfer6Office of the Law Revision Counsel. 17 US Code 101 – Definitions
- Any agreement with unusual terms, or a standard form with heavy modifications.
Attorney fees for drafting or reviewing a basic contract vary with complexity and location, but a review of a straightforward agreement is typically a flat fee that’s a fraction of what’s at stake in the deal. Treat it as a cost of the transaction rather than an optional expense.
The practical takeaway is straightforward. If you’re the one making the offer or selling the product, expect to draw up the contract, and write it carefully because ambiguities will be read against you. If you’re on the receiving end of someone else’s draft, read every provision, push back on anything unclear, and get any verbal promises into the written document before you sign.