“Boilerplate clause” is a term applied to standard clauses found in commercial and consumer contracts to provide for commonly encountered events. They do not relate to the substantive parts of the contract but are necessary to make it work and regulate the performance of the contract.
It is an interesting term to be used when the original reference to ‘boilerplate’ was to a sheet of steel used to make boilers. When you refer to the widely used online encyclopaedia Wikipedia the definition of ‘boilerplate’ reveals that from the 1890s onwards printing plates of text for widespread reproduction were cast or stamped in steel ready for the printing press and came to be known as ‘boilerplates’. This then became the term used for any text that is used in an unchanged form, including in legal documents.
Common boilerplate clauses in property transactions include for example: notices clause, assignment clause, law and jurisdiction clause, waiver clause, entire agreement clause, third parties clause, subcontracting clause, rights of third parties clause, interpretation and force majeure clauses.
The concern is that when contracts are being drafted or reviewed attention tends to be focussed on the operative terms and conditions of the contract with less attention being shown to the boilerplate clauses. However, boilerplate clauses serve a purpose and can achieve different results depending on how they are drafted. It is important to consider these standard clauses in conjunction with the operative terms to ensure that the contract reflects the parties objectives. After all the boilerplate clauses in each contract will be interpreted using the precise words chosen by the contracting parties.
Many contract disputes in the courts can stand or fail depending on how the boilerplate clauses in question were drafted. It is important therefore that attention is given to such clauses when drafting and negotiating contracts as this helps prevent future problems. After all who knows what surprises might be hidden in the boilerplate clauses!