Many of your standard contracts are built using “boilerplate language.” What? Don’t worry, we’ll break it down for you in
Part 1 of Our Boilerplate Provisions Series!
What is Boilerplate?
Boilerplate is essentially a colloquial word for the terms and provisions in contracts that are standard and seen across the board in similar contracts. For instance, if you have a contract for selling an item to a buyer, there may be a term in that selling contract that uses standard language, and many other contracts of that kind (selling an item) also use that standard language.
The language is interpreted similarly across court, which means that should an issue arise, the court looks at that standard term and says “yeah, this is familiar and it means XYZ.” Interpretation MATTERS because if a conflict arises (a lawsuit) the court is the body (whether it be by judge or jury) that will take your contract, look at the facts of your case, and interpret how the facts apply to your contract. How does the contract, as stated, determine who will basically win the argument?
So contracts and boilerplate are kind of a big deal.
Does that make sense? Bear with us here, this is the start of a multi-part series where we will break down common boilerplate provisions in different categories of contracts.
Our Series Features Explanations of Boilerplate Language in:
Disclaimers and Waivers
Limitation of Liability and Indemnity
Attorney’s Fees and Litigation Costs
Choice of Law and Venue Clauses
So follow along for a quick look at what boilerplate is in general and how it functions in a contract.
A Quick Look at Some Boilerplate
Here are some examples of standard language. They look funky, but it’s because they are drowning in legalese (the jargon that lawyers speak in).
“Delay in performance is a material failure of consideration only if time is of the essence, i.e., if prompt performance is, by the express language of the contract or by its very nature, a vital matter.”
This provision says in about 20 words too many that — time is of the essence. If one party to the contract takes too long to complete their end of the deal, then a contract with this provision gives the other party the right not to perform on their end of the bargain.
Practical consideration → the court may consider things like “what is a reasonable amount of time” in this industry or field when making the determination if the party really did take too long. But if a conflict arises, this term gives the party that is waiting, the ability to state in general, “hey man, you’re taking too long, we’re not completing our end of the deal anymore.”
1. Witkin, SUMMARY OF CALIFORNIA LAW (10TH), Contracts §815, at 907 (2005).
“Each Party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile [or email] (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other Party at the addresses set forth above [(or to such other address that the receiving Party may designate from time to time in accordance with this section)].”
Oh boy. This looks daunting, but this term lays down the rules for communication. A contract with this provision means that the parties want their communications to be very official, formal, and in writing.
Practical considerations → keeping all communications in writing is helpful when gathering evidence for the purposes of a lawsuit or potential conflict. However, most business relationships often don’t require this excessive level of formality for all their communications. Frankly, constant formality might not be practical. This might be a provision that’s attached to a term regarding modification of the contract. If the parties want to alter the arrangement a bit, then super formal writing might be necessary to document the change. Generally, keeping emails, noting down phone calls, and that sort of idea – is the kind of writing that might be helpful to practice on the day-to-day.
Do Contracts Just Have Boilerplate Language Automatically?
Some might, it really depends on the type of contract! Certain breeds of contracts are built to have boilerplate provisions. Some contracts are more specified, but many have boilerplate provisions built into certain sections like choice of law and venue terms.
The person drafting your contract may feel the need to have some standard terms in your contract. Never be afraid to ask your legal team – “what the heck does this gibberish mean?” Lawyers love to talk and we prefer clients understand the legalese and what they’re agreeing to, as opposed to stumbling into an arrangement.
2. Practical Law Commercial Transactions, General Contract Clauses: Boilerplate Clauses (Short Form) (CA)
We hope this was helpful, please check out the rest of our Boilerplate Language Series to learn more about standard provisions in different categories of contracts!
The information provided by Greg Butler Law ("we", "us", or "our") on https://www.devcounsel.com (the "Site") cannot and does not contain legal advice. All information on the Site is provided in good faith, however we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information on the Site. The legal information is provided for general informational and educational purposes only and is not a substitute for professional advice. Accordingly, before taking any actions based upon such information, we encourage you to consult with the appropriate professionals. We do not provide any kind of legal advice. THE USE OR RELIANCE OF ANY INFORMATION CONTAINED ON THE SITE IS SOLELY AT YOUR OWN RISK.