What is Boilerplate?
Boilerplate refers to standardized clauses or language used in legal contracts that are largely non-negotiable and appear routinely across many agreements, covering general matters like governing law, severability, and notices.
Why Boilerplate Matters Despite Being “Standard”
While boilerplate clauses are standardized, they can have significant legal consequences if overlooked. For example, a governing law clause determines which state’s courts will resolve disputes: choosing a favorable jurisdiction can make a major difference in litigation outcomes. An integration clause prevents parties from introducing extrinsic evidence of prior negotiations, making it critical to ensure all important terms are in the final written agreement. Force majeure clauses became highly litigated during COVID-19, determining which party bore the economic burden of pandemic-related performance failures.
Key Boilerplate Clauses to Review
Common Boilerplate Clauses
Standard boilerplate clauses include: governing law and jurisdiction, dispute resolution mechanism (litigation vs. arbitration, venue selection), notice provisions (how and where formal notices must be sent), entire-agreement clause (integration), severability (treatment of unenforceable provisions), assignment restrictions, force majeure, counterpart execution, and electronic-signature acceptance. Each clause has substantial impact when triggered, despite being treated as routine during negotiation.
Risks of Ignoring Boilerplate
Lawyers and businesspeople routinely skip detailed review of boilerplate provisions, treating them as standard language. But disputes frequently turn on boilerplate: a poorly-chosen forum-selection clause can force litigation in an unfavorable jurisdiction; weak notice provisions can invalidate termination attempts; absence of severability can void an entire agreement when one clause is unenforceable. Sophisticated counsel review every boilerplate provision against the specific transaction context.
References
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