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)
- Blog post, Counterparts: An Example of Categories-of-Contract-Language Dysfunction (13 October 2021)
- Blog post, Cumulative Remedies? No Thanks (17 Sep. 2018)
- Blog post, More Boilerplate Redundancy: Expressing Both the “Entire Agreement” Concept and the “Merger” (or “Integration”) Concept (22 Jan. 2021)
- 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)
- Blog post, Some Not-Entirely-Positive Thoughts on “Further Assurances” (25 May 2018)
- 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)
- 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.]
- Blog post, Beware Overuse of the “Acting as Independent Contractor” Provision (1 July 2021)
- 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)
- Blog post, Add a Mediation Provision to a Commercial Contract? Meh. (13 Jan. 2014)
- Blog post, Rethinking the “No Assignment” Provision (20 Nov. 2012)
- 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)
- 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)
- 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)
3 thoughts on “My Materials on Contract Boilerplate”
Ken: Do you have any thoughts on the order in which the boilerplate provisions should appear in a contract?
Hi Adam. I suggest the same principle applies as when arranging any provisions: start with that which is most compelling, followed by progressively less compelling stuff. Of course, no boilerplate is particularly compelling, but you do what you can! Also, I group the dispute-resolution provisions together: governing law, jurisdiction, waiver of jury trial, etc.
I sort them into alphabetical order. MS Word makes this easy. View->Outline->Show Level so you see just the level you want to sort, and then highlight the paragraphs. Then paragraph sort – under paragraph, the AZ down arrow button.
The headings are usually pretty similar. I know where to look when I pick up an agreement. Drafters on either side of the transaction can avoid adding redundant paragraphs. And more often than you would expect, after performing the sort, you find a redundant paragraph (using different language).