Hi, I'm Peter and welcome to TransLegal's Lesson of the Week.
Today I'm going to be talking about boilerplate. Some of you probably know boilerplate clauses are standard legal language drawn from the extensive legal experience of law firms and companies around the world over hundreds of years.
Most contracts contain a series of boilerplate clauses which often appear under the heading "General" or "Miscellaneous". Problematically, these are often overlooked when drafting an agreement and, due to their supposed standard status, they are rarely reviewed with as much scrutiny as other clauses which are more specific for the deal in question. However, failing to review them in the context of each deal can be dangerous. One of the most common errors by lawyers drafting agreements is to simply cut and paste the boilerplate language from a previous agreement into a new agreement, often resulting in mistaken party names or irrelevant clauses in the worst-case scenario.
Standard forms may or may not be applicable to a particular situation and they may have been drafted for the benefit of the opposing party in the template agreement that you are using for the cut and paste.
Accordingly, boilerplate clauses should merely be used as a starting point and must be customised for a particular transaction. The example on the whiteboard is a classic example of one of the dangers of boilerplate. This is an entire agreement clause. As the clause reads: "This agreement represents the entire agreement between the parties and any previous understandings and agreements between the parties whether oral or written are hereby null and void." Again, standard boilerplate language. But the problem with this entire agreement clause, which may also be called a merger clause or an integration clause, is that even though it is often included in contracts, if the parties to the contract have had previous dealings and they enter into multiple unrelated agreements in the past, this entire agreement clause would effectively nullify all of those prior agreements. In such a case, the entire agreement clause should be limited to cover only those previous agreements which deal with the same subject matter as the newly drafted agreement.
That's it for today. If you have any questions please leave them in the comment section below and myself or one of my colleagues will get back to you.