[Updated 11 September 2024: I’ve been fiddling with what article headings to use and moving sections around. I expect that will continue for a bit!]
You’re drafting a contract that’s big enough for you to group sections into articles, so the contract is easier to navigate. What do you call the boilerplate at the back? “Boilerplate” would be too cryptic (for many) and too casual. “Miscellaneous” would be a standard option. But that seems a cop-out—describing by not describing.
After ten minutes of thought, I propose an alternative taxonomy:
Let’s use “Resolving Disputes” (which I just stole from Mark Stansbury; see the comments to this LinkedIn post) for these sections (whichever appear, and using whatever section heading you use):
- Governing Law
- Equitable Remedies
- Jurisdiction
- Arbitration
- Recovering Expenses
- Time Limit
- Severability
And let’s use “Administration” for these sections:
- Notices
- Force Majeure
- No Transfer
- Independent Contractor
Instead of a more conventional heading, “Interpretation”, I’d like to experiment with “Constituents of the Contract” for this next group, to reflect that it goes beyond the words. But I don’t bother with “Counterparts”, “Interpretation” (usually), and “Headings”!
- Entire Agreement
- Amendment
- Counterparts
- Interpretation
- Headings
And here’s a new one—”Allocating Risk”:
- Indemnification
- Force Majeure
- Limitation of Liability
But a given contract might have only one provision that falls within the scope of “Allocating Risk”, or none. If “Indemnification” addresses claims between the parties, that would fit better in “Resolving Disputes”. Alternatively, “Indemnification” routinely looms large enough in transactions to give it its own article. And plenty of contracts don’t address force majeure. If “Allocating Risk” would otherwise feature only one provision, put the other one in an article by itself or in whatever other article is the best fit.
What do you think? And what other sections might you add to one or the other of those articles? Or do you have some other taxonomy in mind?
