Boilerplate: Mere Sophistry or Critical Language?

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“Boilerplate” is contract language that is generic or standard across various contract types. Typically used to safeguard against common problems, it is often dropped verbatim into almost every contract without edits or review. For lawyers, reading boilerplate often feels like “déjà vu all over again”.

It’s a trap, my friends! I will tell you why…

But first, what is “boilerplate”? The term comes from printing presses that used standard plates forged from strong metals for prints requiring constant repetition. To printers, they looked like the metal plates attached to boilers (or, “boilerplate”). Now, any language standard enough to be consistently copied is termed, “boilerplate.”

Boilerplate is so common that its absence in contracts is conspicuous and raises red flags. So why is it a trap? Because every contract needs unique attention, and clients (and their lawyers) often assume that all boilerplate is fit for purpose.

In our view, “boilerplate” refers to universal topics that need to be incorporated in all contracts. Language in specific clauses, however, needs to reflect the client’s needs. Some examples of boilerplate (and why review is so important):

  • Force Majeure. this clause, translated from the French phrase “superior power,” determines what happens if a catastrophic event were to prevent one side from upholding their end of the contract.  Depending on the jurisdiction, this is either a statutory obligation or a contractual right.  There is no standard contractual language here; it is therefore crucial that this provision be drafted to best favor your client.  (See my recent complimentary video on supply chain contracts for more details.)
  • Choice of Law and Jurisdiction:  a clause mandating (1) which state/country’s laws govern process and interpretation and (2) which jurisdiction enjoys jurisdiction.  Cases are won or lost on this clause: it is shocking how different states and nations can come to radically different conclusions based on the same facts.   (See my recent complimentary video on supply chain contracts for deeper analysis.)  A smart lawyer can generate material advantage for a case by the wise choice of law and forum.
  • Forum/Arbitration:  a clause mandating forum or arbitration.  Arbitration is often much more expensive than litigation in court, and judgments must be enforced by local authorities.  (Depending on the profile of your client, this could be an impediment to disputing valid rights in court.)
  • Legal Fees:  a clause stating that the losing party in a legal dispute pays the legal fees of the winner.  (Depending on the profile of your client, this could be an impediment to disputing its rights in court.)
  • Severability. a clause stating that if a certain provision is unenforceable, the remainder should be construed so as to maintain contractual enforceability.  Some provisions are essential to a contract’s integrity; were they to be discarded, the contract could be voidable or voided unless this clause protects it.

Boilerplate is common in topic but not in language. You can win or lose cases based on well-drafted “boilerplate”.

If not abundantly clear by now, we recommend that you always consult an attorney when drafting material contracts. The Wallenstein Law Group will focus like a laser on the clauses most important to your business. Contact the Wallenstein Law Group today!

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