My Materials on Contract Boilerplate

I thought it high time that I collect in one place my writings (and a couple of videos) on boilerplate. (By “boilerplate,” I mean the stuff relating to administration and dispute resolution that you see toward the back of most contracts.) The main headings are in alphabetical order; the items under each heading are in reverse chronological order.

Boilerplate is mostly beyond the scope of MSCD, which addresses not what you say in a contract but rather how to say in a contract whatever you want to say. But that’s not a clear-cut distinction, so I get into a couple of boilerplate topics in MSCD; I’ve included them in the following list. If something is covered in MSCD, I’ve omitted from the list any related blog posts. And I’ve omitted anything else that seems too dated or marginal.

Why don’t I just write a book about boilerplate? Because the format would be all wrong. I don’t want to produce a bunch of analysis with static contract language; I want to produce customizable contract language with just enough analysis to explain what’s going on. That requires automated contract creation, not a book.

I’ll update this list as necessary.

[Updated 8 Sep. 2022: Added two 2011 blog posts under “Jurisdiction,” a 2022 blog post on consequential damages under “Limitation of Liability,” and a 2022 blog post under “Indemnification.”]
[Updated 13 Jan. 2022: Added an item under “Limitation of Liability.”]
[Updated 23 Nov. 2021: Added a second bullet point under the heading “Indemnification” and under the heading “Successors and Assigns.”]
[Updated 26 Oct. 2021: Added two glaring omissions, one under the heading “Entire Agreement,” the other under the heading “Independent Contractor.”]

Amendments in Writing

• Blog post, More Industry-Wide Elegant Variation: Amendments in Writing (25 June 2021)

Counterparts

• Blog post, Counterparts: An Example of Categories-of-Contract-Language Dysfunction (13 October 2021)

Cumulative Remedies

• Blog post, Cumulative Remedies? No Thanks (17 Sep. 2018)

Entire Agreement

• Blog post, More Boilerplate Redundancy: Expressing Both the “Entire Agreement” Concept and the “Merger” (or “Integration”) Concept (22 Jan. 2021)

Force Majeure

• Blog post, Don’t Keep Refighting the Last Force-Majeure Battle (20 Feb. 2021)
• Blog post, Force Majeure in the Time of Coronavirus: The Underlying Concepts and How to Express Them Clearly (24 Mar. 2020)
• Blog post, Economic Crisis as Force Majeure? (Plus a Note on Italics and Hyphens) (18 Jan. 2014)
• Blog post, Revisiting My “Force Majeure” Language (With Yet More Changes) (20 Aug. 2013)

Further Assurances

• Blog post, Some Not-Entirely-Positive Thoughts on “Further Assurances” (25 May 2018)

Governing Law

• Blog post, Including Federal Law in Governing-Law Provisions (4 June 2021)
• Blog post, Revisiting Governing-Law Provisions (1 Aug. 2019)
• Blog post, Simplifying Governing-Law Provisions, Part 3 (“Governs” and the Alternatives) (15 July 2015)
• Blog post, Simplifying Governing-Law Provisions, Part 2 (Renvoi!) (13 July 2015)
• Blog post, Simplifying Governing-Law Provisions, Part 1 (3 July 2015)

Indemnification

• Blog post, It’s Time to Start Thinking About Not Using the Term of Art “Indemnify” (2 Jan. 2022)
• Blog post, “Indemnification” or “Indemnity”? (4 Nov. 2021)
• Blog post, Indemnification Carveouts: Which Are Your Favorites? (30 Apr. 2019)
• MSCD (4th ed. 2017), Indemnify (¶¶ 13.399–.441)
• Blog post, Be Clear About Whether Indemnification Covers Only Nonparty Claims (4 Jan. 2016)
• Blog post, My Indemnification Language (13 Aug. 2013) [I’ve updated this periodically, but I expect that when the time comes for me to create automated indemnification language, I’d make changes.]

Independent Contractor

• Blog post, Beware Overuse of the “Acting as Independent Contractor” Provision (1 July 2021)

Jurisdiction

• Blog post, In the Delaware Chancery Court, a Cautionary Tale on Consent-to-Jurisdiction Provisions and the Perils of Redundancy (3 May 2021)
• Video, Ken’s Hot Take on Jurisdiction Provisions (Feb. 2021)
• Blog post, Jurisdiction Provisions, Part 4: Using Convenient-Forum Provisions Instead of No-Objecting-to-Inconvenient-Forum Provisions (1 Jan. 2021)
• Blog post, Jurisdiction Provisions, Part 3: Don’t Use the Words “Jurisdiction” and “Venue” in Specifying Which Courts Would Resolve Disputes (29 Dec. 2020)
• Blog post, Jurisdiction Provisions, Part 2: Stop Using No-Objecting-to-Jurisdiction Provisions! (15 Dec. 2020)
• Blog post, Jurisdiction Provisions, Part 1: Stop Using Consent-to-Jurisdiction Provisions! (24 Aug. 2019)
• Blog post, If You Want Exclusive Jurisdiction, You’d Better Make That Clear (2 Dec. 2011)
• Blog post, Rolling the Dice with Prepositions in Forum-Selection Provisions (28 May 2011)

Limitation of Liability

• Blog post, MSCD5: The Section on “Consequential Damages” (9 July 2022)
• Blog post, Limitation-of-Liability Overkill (5 Mar. 2020)
• MSCD (4th ed. 2017), Consequential Damages (¶¶ 13.161–.186)

Mediation

• Blog post, Add a Mediation Provision to a Commercial Contract? Meh. (13 Jan. 2014)

No Assigment

• Blog post, Rethinking the “No Assignment” Provision (20 Nov. 2012)

Notices

• Handout, Ken’s Notices Provision and Related Resources (Word document) (28 July 2021)
• Video, Ken’s Hot Take on Notices Provisions (Mar. 2021)
• Blog post, Thoughts on Delivery “By Hand” (7 Feb. 2021)
• Blog post, Giving Notice by Email Only? I’d Rather Not (6 Apr. 2020)
• Blog post, The Problem with “Personal Delivery” (6 Sep. 2012)

Severability

• Blog post, OK, Let’s Try That Again: Revisiting My Severability Provision (3 Feb. 2017)

Successors and Assigns

• Article, It’s Time to Get Rid of the “Successors and Assigns” Provision, The Advocate (June/July 2013)
• Blog Post, A “Successors and Assigns” Example of Turning Pointless into Wrong (11 Nov. 2021)

Survival

• MSCD (4th ed. 2017), Survival of Provisions (¶¶ 13.377–.379)
• Blog post, Invoking Provisions That Are “Intended to Survive Termination” (9 Feb. 2016)

Which Part Controls

• Blog post, “Control,” “Prevail,” “Take Precedence,” or “Govern”? (21 Sep. 2012)

(Image by Andrew Martin from Pixabay)