Many years ago, it was common for buyers to have the keys of an empty property between exchange and completion in order to carry out works, clean and decorate. This does not happen as often now. I recall that on one of the first occasions when I was acting for a buyer who was given permission to have the keys, I drafted a key undertaking.
It was early in my career; there was no internet so there were no precedents as easily available as now, I had been taught the phrase – ‘don’t be a slave to precedent’ – so I looked at a few key undertakings I had seen on previous transactions, and then drafted an undertaking. I did not copy any other undertaking but took the best parts of those I had seen and added in my own clauses. I have to admit that I was happy with what I had drafted; in fact, I was really pleased with it as I thought it covered all eventualities and showed a clear understanding of what was intended and protected both the buyer and the seller.
A few months later, I was acting for a seller of a property. My client had agreed that the buyer could have occupation between exchange and completion. I did not know the firm acting for the buyer and had never dealt with them before. The buyer’s solicitor sent me a draft undertaking for approval. I was so surprised as it was identical to the one, I had sent on my purchase to a different firm of solicitors a few months earlier. I went through my original undertaking and, word for word, it was the same. There were no alterations whatsoever. I was not quite sure what to do. Should I call out the plagiarism? I could not argue that the undertaking was not approved – I could argue that as I was acting for the seller on this occasion, changes were needed but I had drafted the original undertaking to deal with all eventualities and ultimately to protect both parties.
I did not say anything – I approved it and continued with the transaction but that experience has stayed with me. My undertaking had been used by the sellers’ firm on the original transaction and sent by them on a future transaction in which they had acted and who knows how far that undertaking had travelled.
This event came back to mind this week. I was scrolling through LinkedIn and saw a post which was identical to last week’s diary but presented in a different way. There was no recognition that it had been taken from my diary. I read it and then read it again. I was astounded and was not sure what to do. Should I comment? Others were liking the post and commenting on how they agreed with it. Who were they agreeing with? The solicitor who posted it or me? Did those liking the post and commenting know that it was originally written by me? If there had been an acknowledgement that it was taken from my diary, it would have made me feel better, but I have to be honest and say I was disappointed that another solicitor took the diary entry, copied and pasted it and took ownership/authorship of it.
After a night’s sleep, I decided that I could not do anything about it, but if the solicitor who copied it could just amend it and acknowledge me, that would be appreciated. If not, then I know it has been plagiarised and it has made me realise that perhaps all of the posts I read on LinkedIn are not written by the person purporting to be the author, although I have seen posts where the original author has been credited. I finally decided that I had to accept that my diary entry last week must have been really good for someone to copy it in its entirety in the same way that my key undertaking was well drafted. I pat myself on the back for that – and I now accept that it is a privilege that someone took what I wrote and used it as their own but remember – don’t be a slave to precedent.
2 Responses
A quiet word in their shell like maybe?
A lot of conveyancers from a certain generation had fun with key undertakings! I remember in the 80s the first time a seller’s ( vendor’s then ) solicitor advised their willing client not to agree without getting their mortgagees’ consent.