Boilerplate (a term adopted from the printing industry) refers to a series of short clauses at the end of a legal document or contract, often grouped under a heading of ‘general’ or ‘misc’.
But this approach, treating them as irrelevant small print shoved at the back and rarely read, undermines the very real impact they can have on the parties.
A different approach
Although some boilerplate is moderately useful, a small amount is critical, and the rest is not relevant to this deal or redundant as it merely reflects national laws, almost all of it is best dealt with elsewhere in the contract.
Practical Law produces a practice note for subscribers on boilerplate reflecting its 2018 review of its own bloated boilerplate bonanza – the review was led by Daphne Perry, an eminently sensible plain language specialist. But even she had to retain some of the clauses! You can get free guidance on 40+ common boilerplate clauses from various sources.
But even for PLC’s retained critical content, much of it should not be in the final section. For example:
- a clause preventing oral modifications of the contract should be part of the change management clause – what I call ‘how this contract or the scope can change’
- a clause explaining the consequences of events beyond the parties’ control (sometimes called force majeure) should be reflected in a process to deal with delays to the project
- where disputes can be heard and which laws apply (jurisdiction or choice of law) is best covered in the disputes section – what I call ‘how we resolve issues’
- any restrictions or bans on passing on the interests of the parties really comes under the subcontracting process – especially as assignment is now generally permitted for providers under the 2018 Assignment Regulations
- the consequences of termination and what each party should do to create an orderly end to their relationship, are much clearer in the section on termination or cancellation aka ‘how this contract can end’.
- any interest on late payments should be either governed by statute (the Late Payment of Commercial Debts (Interest) Act 1988) or noted in the payment process.
I don’t consider some content suitable for boilerplate at all – copyright and confidentiality (or how the parties can share and use information), caps on liability or liquidated damages (pre-agreed damages paid for delays to completion or other breaches of contract), and indemnities all need careful consideration and tailoring to the specific transaction.
My only concession is to include a statement that the contract does not grant rights to third parties, as some contract users don’t think a contract is properly dressed without this!
What should you do?
Writing a contract in plain language means ensuring a user can find what they need – and this means as far as possible collating all the content on a specific user-topic together. It makes little or no sense to undermine some of the beautifully-bespoke content with unconsidered ‘off-the-shelf’ boilerplate.
Your contract is not a repository for unloved clauses – it is the precise record of a specific deal between two unique companies.
Every single word needs to add value, even if it is in the so-called ‘small print’.
