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Boilerplate Provisions
Contract Drafting
This article is a short but comprehensive guide into all aspects of contract drafting.
Boilerplate Provisions
Black’s Law Dictionary defines “Boilerplate” as: “Language which is used commonly in documents having the same meaning; used to describe standard language in a legal document that is identical in instruments of a like nature.” Boilerplate language certainly serves a purpose to reduce transaction costs and avoid protracted negotiation over what, in many instances, are standard terms. But, too often, lawyers rely on this common usage of the term “boilerplate” when examining, or rather glossing over, relatively customary contractual provisions such as recitals, statements of consideration, and the ever-dangerous miscellaneous section. Like other contractual provisions, mere reliance on form boilerplate provisions can yield unintended and often unfavorable results. Therefore, attorneys are cautioned to review these provisions with the same care as they would review the remaining terms of a given contract.
The Miscellaneous Section of a Contract
In this day of computers, forms, electronic drafting assistants, and Google searches, very few if any attorneys start a contract from scratch each time. This paper presents certain issues that can arise in connection with the miscellaneous sections of a contract from a trial attorneys’ perspective. What are some of the red flags for when the miscellaneous sections of a contract should be treated as “deal points” and when are they just “belt and suspenders”? When are these clauses merely boilerplate, and require no variation from the prior version, form or sample used?