Boilermakers or Boilerplates?
The first in a series of posts to help explain contract boilerplate, so that it can be used as intended — to avoid a blowup.
I don’t know about you, but even I would certainly prefer a boilermaker over dealing with contract boilerplate. What is boilerplate? Well, in contract terms it is the “standard language” or “miscellaneous provisions” you see at the back of almost every contract you encounter. What is a boilermaker? If you’re not sure, head down to your local pub and ask for one.
It has been said that we call this contract language “boilerplate” because of the use of that word in other industries. In shipping a boilerplate was a heavy piece of steel bolted onto a steamer ship’s boilers. That plate had the responsibility to transfer heat away from the boiler so that it could be useful to the ship, and to provide extra strength to the boiler so that explosions would be avoided and the ship would not be destroyed. Further, in the newspaper industry, those old pieces of ship boilerplate would be re-purposed into templates for printing newspapers on presses. The plates would be engraved with those items of the newspaper which never changed, so as to not be required to re-type set those items each time a paper was printed.
Hopefully, you can see why we call those “standard terms” boilerplate in a contract. Their purpose is to provide some structure and foreseeable results when things go bad in a business relationship. The intent is to transfer the dispute pressure away from the parties and the transaction into a foreseeable resolution without the transaction exploding. Historically, it also made sense because it was a heavy administrative burden to revise terms and conditions for each contract.
We don’t live in a printing press world anymore. We live in a world where a couple of keystrokes can revise a document before we print it for a penny a page (if we print it at all, that is). Thus, logistically, we live in a time where it is simple to customize contract language, even boilerplate provisions, to the transaction at hand – and people do, all the time.
The practical takeaway is that it is important for you to understand what the boilerplate provisions mean. That knowledge is what will help you see when something may lead to, instead of avoiding, an explosion. That is the purpose of this series – to (hopefully) help you understand the purpose of contract boilerplate provisions, so that you can change them and identify when you need legal advice to be sure you are getting the benefit of the bargain you thought you struck with that other person. Towards those ends, future posts will include items such as assignment, waivers, force majeur and other very exciting(?) clauses.