Boiler Plate

Standard language found with little variation in many contracts of a given type. The origin of the term is the story, perhaps apocryphal, that when large documents, such as corporate prospectuses were produced, the printers, rather than repeatedly typesetting this language, already had whole sentences and paragraphs it made up and etched on hard steel boilerplate, so that the type section could be reused indefinitely. A cliché is, inter alia, a printer’s expression for a word or phrase, which because of its frequent use (or over use) the printer would keep made up as a set of type rather than individual letters of movable type.

Simply copying boiler plate into an agreement can be dangerous, since it can vary based on context and sometimes certain boiler plate clauses are ill-suited to a particular contractual situation, for example, blanket no-waiver clauses in development agreements. Such a clause would, for example, provide that one or both never waive rights to claim breaches of the agreement, and are often combined with a clause requiring a very difficult process for amending the agreement; the difficulty with development agreements is that the details of the agreement are often and repeatedly informally changed, including time lines, prices and specifications. If such a clause is present, it can mean that parties are rapidly in breach from the outset of the agreement. Alternately a clause derived from US contracts might fail in its disclaimers to recognise the difference in many common law countries between a warranty and a condition, treating the terms as interchangeable where they are not as a matter of law.

Boilerplate serves two useful purposes: (a) it cuts drafting cost and effort; (b) it serves as a sort of “checklist” for clauses that should be in an agreement. However, it should not be used slavishly and without careful review of the boilerplate’s meaning and effect.