The important of some, but not too much ‘boilerplate’ in a contract to ensure it is binding…

With the advent of the internet, it is all too common to see contracts, including leases, agreements, Deeds etc, downloaded online without any real knowledge of what they contain. While this may save a few hundred dollars, often these contracts contain mostly ‘boilerplate’.

Boilerplate refers to routine, standard and generic terms including definitions – sometimes called the ‘fine print’.

Proper boilerplate is sometimes critical to a contract6, but generic boilerplate can obfuscate (hide) the real issues in the contract, meaning one or both parties doesn’t understand the contract, or know which [arts are important (one of the parties – often the one that has not drafted (or downloaded) it, can often ‘get out’ of the contract by stating they were not aware, and really could not have been aware of what it was really about. The rule of ‘contra proferentem‘ applies here.

Most contractual disputes in the Courts are concerned with the proper construction of a contract and its tems, and often boilerplate clauses imply reinstate established contract law principles and are not necessary.

Nothing in this article is to say that boilerplate is not important – it is. But making a contract dound ‘fancy’ and ‘legal’ does not make it so.

For a properly drafted, invariably binding contract, consult a lawyer.

Precis:

It is common to see contracts, including leases, agreements, Deeds etc, downloaded online without any real knowledge of what they contain. They contain lots of Boilerplate –  routine, standard and generic terms  – sometimes called the ‘fine print’.

Proper boilerplate is sometimes critical to a contract, but generic boilerplate can obfuscate (hide) the real issues in the contract, meaning one or both parties doesn’t understand the contract, or know which parts are important.

It is not to say that boilerplate is not important – it is. But making a contract sound ‘fancy’ and ‘legal’ does not make it so, and can mean that a party, particularly that which drafted it (the contra proferentem rule), will not be protected by it.