Boilerplate: Difference between revisions

There are degrees of boilerplate. [[Legal eagles]] will get very hey up about [[indemnities]], [[Events of default|default events]] and [[close out]] rights, and swear blind that theser aren’t just boilerplate. And to be sure, they excite animal passions — ast least amongst risk officers and lawyers — in a way that [[representations and warranties]], [[covenant]]s, notices, [[governing law]], [[counterparts]], [[entire agreement]], [[amendments]], [[process agent]] appointments, [[Contracts (Rights of Third Parties) Act 1999]] exclusions and so forth really don’t — all that pointless heft down the back of the agreement that no-one — least of all the client — reads, that makes a simple agreement complicated and that can swing around and bite you when you least expect it.

If we assume that a legal provision, however standardised, ''does'' something — that is to say, it alters the state of legal affairs between the merchants from the one that would prevail if nothing were said; and, accordingly, boilerplate reallocates risk ''away'' from its natural destination — then the question at the top of a draftsperson’s mind when assembling a draft ought to be, “is such a perversion of the natural order of things justified, and if so, ''why''? How has the [[common law]] managed to get standard things so badly wrong?”  

So it transpires, that much of the [[litigation]] concerning [[boilerplate]] — and there is a disheartening amount if it — boils down to a fight between one party arguing for a commonsense commercial outcome — that is, the one that accords with the understanding that passed between the merchants during their commercial discussions — and a freakishly distorted outcome with no equitable rationale but that is vouchsafed by creative application of boilerplate terms to which no one paid the blindest bit of attention when the contract was being negotiated.