Common Clauses – Breaking down Boilerplate

A significant portion of any business law practice involves negotiating, drafting, and reviewing contracts. Doing that well requires more than just legal knowledge. It means understanding the parties, their objectives, and the risks they’re trying to manage. It also means thinking through worst-case scenarios and planning for them in advance.

All of that is essential. But it’s only part of the picture.

Most contracts also include a set of so-called “boilerplate” provisions. These clauses are often overlooked because they can be dense, repetitive, and, frankly, not very interesting to read. There’s also a common assumption that they don’t really matter.

The first two criticisms may be fair. The third is not.

"Boilerplate" provisions can have outsized consequences. In litigation or alternative dispute resolution, they often determine where a case is heard, how it proceeds, and what remedies are available. They can limit who may be sued, cap damages, or dictate whether a dispute must go through mediation or arbitration before reaching a court. They can control whether prior negotiations matter, whether rights can be assigned, what happens if part of the agreement is unenforceable, and even how formal notice must be given.

In short, these provisions quietly shape the real-world impact of a contract, and often in ways that only become apparent when something goes wrong.

“Common Clauses” is a series of short posts examining frequently used contract provisions: what they mean, why they matter, and how to approach them in practice. Most of these clauses will look familiar. Few are carefully read.

The goal of this series is to change that.

Here is a running table of contents for this series:

1. Authorization to Enter Contracts (July 29, 2022)

2. Integration and Merger (August 2, 2022)

3. Construing against the Drafter? (August 4, 2022)

4. Venue Selection (August 22, 2022)

5. "Time is of the Essence" (October 5, 2022)

6. Headings for Information Only (April 25, 2023)

7. Severability (August 4, 2023)

8. Alternative Dispute Resolution (November 11, 2023)

9. Change of Ownership (Upcoming)

10. Notice Provisions (Upcoming)

11. Indemnity (Upcoming)

12. Attorney Fees (Upcoming)

13. Governing Law (Upcoming)

14. Assignment and Delegation (Upcoming)

15. Amendment/Modification (Upcoming)

16. Waiver (Upcoming)

17. Further Assurances (Upcoming)

18. Survival Clauses (Upcoming)

19. Third Party Beneficiaries (Upcoming)

20. Force Majeure (Upcoming)

21. Non-Reliance Clauses (Upcoming)