How Contract Boilerplate Can Bite
University of New Mexico School of Law
Rocky Mt. Min. L. Fdn. Ch. 1, Page 6-1, 2013
Lawyers and academics often use the term “boilerplate” to refer to standardized non-negotiable contracts that prey upon consumers. But for more sophisticated contracts drafted and negotiated by transactional lawyers, the term refers to those common, usually short, and seemingly innocuous provisions at the end of the contract, often under a heading entitled “general” or “miscellaneous.” While these provisions seem harmless enough, for those transactional lawyers unfortunate enough to see 50 or 100 page contracts the subject of litigation, experience shows that crafty litigators with ample time and will to research and argue the meaning of each word in the contract will claim that notices are defective, implied waivers have been granted, and anti-assignment clauses are invalid. Worse yet they may materialize a previously unknown claimant that sues on a theory of third party beneficiary rights. This article examines the legal ramifications of these beastly boilerplate provisions, how they might inflict a stinging and painful bite, and the means to tame the monsters.
Number of Pages in PDF File: 55Accepted Paper Series
Date posted: August 1, 2013 ; Last revised: January 27, 2014
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