Document Type
Article
Publication Date
Spring 2024
Abstract
The law applicable to “boilerplate” provisions is often given little attention in contract drafting classes because textbooks focus too much on the textbook author’s opinion of the best words to use for various contract provisions and how to format each clause (e.g., whether to use “shall” or “will” or “must” for a covenant or obligation, whether to write numbers numerically or in words (or both), whether to use “on or about” instead of “within” for a time period, whether to bold or underline definitions, or put them in quotes, etc.). Students need to learn to draft clearly and unambiguously; and following the author’s rules and guidelines helps students accomplish that result. However, students must also follow the law applicable to “boilerplate” provisions. The law determines the enforceability of the provisions. If students don’t learn to follow the applicable cases and statutes, they will learn how to write a clause that correctly follows the guidelines in a textbook but is not enforceable.
This article outlines some cases and statutes applicable to common boilerplate clauses, and provides sample language for each provision, as well as exercises an instructor could use to teach students the importance of considering boilerplate law.
Recommended Citation
Ben Fernandez, Contract Drafting Classes Need to Devote More Consideration to the Law Applicable to "Boilerplate" Clauses, 31 Persps. 23 (2024).