Resources: commercial imperative | Verbiage | Look, I tried | The ultimate client
A work creation scheme for our learned friends.
The representations and warranties, covenants, notices, governing law, counterparts, entire agreement, amendments, process agent appointments, Contracts (Rights of Third Parties) Act 1999 exclusions, meaningless indemnities — 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 round 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.
You may call this a jaundiced view, but really, if boilerplate is designed only to reinforce the settled position of the common law, what really does it do other than adding heft?