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.
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