Boilerplate is boring. These provisions make it into commercial contracts by the skin of their teeth; they are allocated the worst real estate within the document, at the very end. And for good reason: They appear to have no connection whatsoever to the business deal and are written in dense legalese that requires a J.D. to decipher. Moreover, experienced drafters have seen these provisions so many times they can recite most of them from memory. So why should a lawyer waste time — and the client’s money — thinking about these provisions, commenting on them, trying to change them?
The answer, of course, is because the language that ends up in a boilerplate provision can have a very real impact on how the business deal memorialized in the contract will eventually turn out. This is especially so in the context of a dispute down the road. Experienced draftspersons appreciate that the language of these clauses should never be approached as a “one size fits all” exercise. This article examines a handful of contract clauses that often receive scant attention from drafters — “boilerplate” and “whereas” clauses — and presents some thoughts, perspective and approaches that have proven helpful in real-life practice. Examples are drawn from the author’s experience in drafting fashion license agreements.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]