On October 7th, 1800, in the Bay of Bengal, two ships met in conditions that should have produced a quick result.

The first was the Kent, an East Indiaman owned by the British East India Company. Forty guns. Four hundred and thirty-seven men. Twelve hundred tons of cargo and crew, returning slowly under sail along a known trade route.

The second was the Confiance, a French privateer corvette under the command of a twenty-seven-year-old captain from Saint-Malo named Robert Surcouf. Eighteen guns. One hundred and fifty men.

By every reasonable calculation, the Kent should have won this encounter. It had nearly three times the men, more than twice the guns, and the structural advantage of a heavier hull built for global commerce.

It did not win. Surcouf boarded the Kent, took it, and brought the prize back to the French Île de France, today’s Mauritius, in November of that year. The British Admiralty subsequently put a price on his head.

The reason this attack was a celebrated military exploit and not a piracy charge punishable by hanging is the same reason most modern tech contracts go quietly wrong. It comes down to a piece of paper, dated and signed, with five specific elements on it.

The piece of paper was called a letter of marque. The five elements are what your prestataire’s contract is probably missing.

What a Letter of Marque Actually Was

Letters of marque were not, despite the romantic image, blank licenses to attack enemy ships. They were precise, bounded, and accountable instruments of state warfare conducted through private operators.

A letter of marque had five constitutive elements, and a letter that lacked any of them was either invalid or an instrument of piracy under another name.

The first element was a defined geographical scope. The Bay of Bengal, yes. The territorial waters of a neutral nation, no. A privateer who took prizes outside the geographical scope of his letter could be, and frequently was, prosecuted by his own crown for piracy. The geographical bound was not decorative. It was the substantive limit of legitimate action.

The second was a defined time horizon. Six months, a year, two years. Not indefinite. The mandate was an operation, not a position. When the letter expired, the privateer either returned to port for a new commission or stopped operating entirely. Continuing to take prizes after expiration was, again, piracy.

The third was a defined target. Which flags were lawful prey. Which were not. Neutrals, allies, and certain protected categories of merchant traffic were excluded. The list was explicit, not implicit. A privateer who attacked an unauthorized target was operating outside the letter, regardless of how rich the prize was.

The fourth was the share. The royal treasury took a percentage of every prize, fixed in advance, paid before the privateer touched his cut. This was not a tax on success. It was the price of the mandate itself. Without paying the share, the privateer was not a privateer. He was an unsanctioned operator, which is to say, a pirate.

The fifth was accountability at the return. When the privateer came back to port, he produced his logs, his prize manifests, his casualty records, and any evidence of his conduct on the voyage. The prize court reviewed everything. A privateer whose paperwork did not match his prizes, or who could not account for his conduct, lost his commission, his prizes, or his head, depending on the severity.

Five elements. Geographical scope. Time horizon. Defined target. Pre-agreed share. Mandatory accountability at the return.

This is what made the Kent a legitimate prize and not a crime.

The 1681 Ordinance

The five-element structure was not an oral tradition or a customary practice. It was codified in French law in August 1681, under the direction of Jean-Baptiste Colbert, in what became known as the Grande Ordonnance de la Marine, or simply the Ordinance of 1681.

The Ordinance was the first comprehensive maritime code in modern Europe. It covered shipping contracts, charter parties, sailor wages, marine insurance, and the law of prizes. The privateering provisions sat inside the prizes section, alongside the procedural rules for adjudicating captured property.

Colbert drew explicitly on Dutch maritime statutes from Amsterdam and Antwerp. He was not inventing a regime. He was systematizing a practice that already existed in fragmentary form, and giving it the legal weight that allowed French privateers to operate, and French prize courts to adjudicate, with predictable rules.

The Ordinance survived in modified form until the Declaration of Paris of 1856, which abolished privateering across most of Europe. For 175 years, the privateer-pirate distinction was a stable feature of European maritime law, and the five-element structure was its operational core.

What is interesting, for present purposes, is not the legal history. It is that the same five-element structure recurs, almost intact, every time a society needs to give private operators substantial autonomy without losing the ability to call them to account.

It recurs in modern military rules of engagement. It recurs in police use-of-force authorizations. It recurs in financial fiduciary mandates. It recurs in clinical trial protocols.

It does not, generally, recur in tech consulting contracts.

Why This Matters for Modern Tech Contracts

If you are a CEO who has signed a tech consulting contract recently, take it out and read the first page.

You are looking for five things. You will probably find two of them, partially.

You will find a list of services. Not a defined scope, but an enumeration of what is included. The difference is significant. An enumeration tells you what is in. A defined scope tells you what is in, what is out, and what the procedure is when something is in dispute. Most tech contracts enumerate. Almost none define.

You will find a duration, but it is likely to be either a fixed term with an automatic renewal clause, or an indefinite duration with a termination procedure. Neither of these is a time horizon in the letter-of-marque sense. A letter of marque ended on its expiration date and required a new commission to continue. A renewable contract ends only when one party affirmatively decides to end it, which means it has a default toward continuation. The two structures produce different incentives, and the default-toward-continuation structure produces drift.

You will probably not find a defined target in the operational sense. You will find a description of the work. Whether the work is succeeding, however, is rarely defined in the contract itself. It is left to the parties to assess at periodic reviews, which means it is left to relational dynamics rather than contractual structure.

You will find a price, but the price is rarely a share of outcomes. It is usually a fee for time and effort. This is not a moral problem. It is a structural one. A fee for effort produces an incentive to produce more effort, regardless of whether more effort is what is needed. A share of outcomes, on the other hand, produces an incentive to produce outcomes efficiently. The privateer’s share was the latter, and it was the price of the mandate.

You will find some form of reporting, but you are unlikely to find mandatory accountability at the return, in the sense of a defined moment when the relationship is reviewed against its full record and either renewed, modified, or closed. Most tech contracts have ongoing reporting and quiet attrition. They rarely have a clear moment when everything is laid on the table for review.

In other words, most tech consulting contracts have a contract structure that, if you compare it to the letter of marque, is missing three of the five constitutive elements.

The Three Questions Before You Sign

If you do not have time to redesign your prestataire contracts from scratch, there are three questions you can ask before signing that will tell you whether you are looking at a mandate or a cohabitation.

The first question is about scope. Not “what services are included?”, but “what happens when something is in the gray zone, and how do we know in advance?”. The answer should not be “we discuss it as it comes up”. The answer should be a procedure. If your prestataire cannot describe the procedure for resolving scope ambiguity in fewer than three sentences, the scope is not defined.

The second question is about ending. Not “what is the duration?”, but “how do we know we are done, and what is the test for that?”. The answer should be a state, a deliverable, or a date, with the test specified in advance. The answer should not be “when the engagement no longer adds value”, because that test produces continuous mission creep without a single moment of clear completion.

The third question is about review. Not “how often do we have status meetings?”, but “when do we lay everything on the table and decide whether to continue?”. The answer should be a calendar entry. It should not be “we review continuously”, because continuous review without a forcing function produces continuous reporting without continuous decision.

A contract that survives these three questions cleanly is rare. It is also, almost without exception, a contract that produces good outcomes for both sides.

A contract that does not survive these questions is not necessarily fraudulent or even badly intentioned. Most of the time, it has been written by people who have always written contracts that way, and who have not had the occasion to ask whether the structure they have inherited produces the outcomes they want.

The three questions are uncomfortable to ask. They are also the cheapest piece of due diligence available to a CEO before signing a long-term tech contract.

Pirates of Modernity

The privateer-pirate distinction is not, even in its historical form, a moral distinction. It is a structural one.

A privateer with a valid letter of marque, attacking a permitted target in the permitted area within the permitted time, was a legal combatant. The same person, doing the same act, the day after the letter expired, was a pirate, subject to summary execution.

The act was identical. The structure had changed.

In modern tech consulting, the same person, doing the same work, can be operating either as a mandataire under a defined commission or as something closer to an embedded resource without a clear sponsor. The work might look identical from the outside. The structural posture is entirely different.

The privateer-pirate distinction in modern terms does not have a hanging at the end. It has, instead, a slow erosion of accountability, a quiet inflation of scope, and a gradual conversion of what was meant to be a mission into what becomes, in practice, a permanent annex to the organization.

This is not a catastrophic outcome. It is an expensive one. It is also a quiet one, which is why it goes unnoticed until someone, usually a new finance director or a new CEO, starts asking why a particular prestataire has been on the books for six years and what, exactly, the original mandate was.

The answer is often that the original mandate has long since been completed, and what remains is a residual relationship that nobody has the political energy to terminate cleanly.

The Art of the Return

There is one final element of the letter of marque that does not appear on the document itself but that runs through the entire institution.

A privateer was supposed to return.

The voyage had a beginning, a duration, and a return to port. The return was not optional. It was the moment when accountability was rendered, the prizes adjudicated, the share distributed, and the next commission, if there was to be one, negotiated on the basis of what had just been done.

A privateer who did not return became, by default, a pirate. Not because anyone declared him so, but because the structural conditions of his legitimacy required the return to close the loop.

Most modern tech mandates have no equivalent return.

The work continues, the invoices continue, the meetings continue, but the moment of accountability, the moment when everything is laid on the table and the question is asked whether the original mandate has been fulfilled, never comes.

The simplest fix is to put it on the calendar before the work begins. Six months, twelve months, eighteen months. A specific date. A defined review. An explicit decision to continue, modify, or close.

This is not a complication of the relationship. It is the frame that makes the relationship a mandate at all.

If you are signing a tech consulting contract this quarter, find the return date.

If it is not in the contract, write it in.