I’ve intermittently pondered what to call the contracts one copies, in whole or in part, when drafting a new contract.
Contracts Prepared for Use in Future Transactions
First, consider those contracts that are prepared for use in future transactions and so contain blanks, placeholders, and perhaps suitable annotations. What should they be called?
Did you say “forms”? I’m not keen on that choice. For one thing, it suggests a fill-in-the-blanks form. Also, “forms” is used by many lawyers to refer to any contract that a new contract is based on, including contracts from previous transactions. So “forms” is both too narrow and too broad.
How about “model”? Well, it conveys the meaning “worthy of imitation,” which is reasonably apt. On the other hand, it conveys a broader meaning, too, so anything that you base a new contract on could be called a model, whether it was created expressly to serve that purpose or was used in a previous transaction. I think that mix of meanings rules out “model” as a possibility.
What about “standard contract” or “master contract”? I don’t think those terms are widely used, and it’s never a good idea to try to convince lawyers to adopt new terminology.
So I vote for “template.” It conveys just the right meaning—something prepared to facilitate the making of copies.
Contracts from Other Transactions
Second, what about contracts from other transactions?
“Forms” is the perhaps the term most widely used, but this meaning strays rather far from, and is inconsistent with, the original meaning of a fill-in-the-blanks form.
And as described above, one meaning of “model” would preclude it from serving this function, and the other meaning is too broad.
So here’s my choice: “precedent contract.”
All Contracts Used in Preparing a New Contract
Your best bet for a collective term for templates and precedent contracts would be “model,” but it’s not ideal, given the alternative meanings mentioned above.
It might be best not to use such a collective term. And I don’t think you’d miss not having one.
What do you think?
3 thoughts on “What to Call Contracts You Base a New Contract On”
I think you’re straying a little too far from reality with this one. I find the technical minutiae discussed on this site useful for refining my drafting and negotiating skills. I also enjoy the intellectual discourse.
This question is just complete nonsenese. I’ve practiced for many years both in private practice (large firm) and in-house (Fortune 500). The only context in which I can think of this arising is when I ask a colleague for a document. Whether I ask her for a template, form or model, I am certain she’ll know exactly what I’m talking about and provide me with whatever materials she has that would be helpful.
Also, “Master Contract” *is* a widely used term (although not as often as “Master Agreement”). We have a number of vendors who provide agreements styled “Master Contract” that set forth certain standard terms for all transactions. Under those Master Contracts are “Attachments” that specify terms for particular types of transaction. So you would see a Master Contract, then a Professional Services Attachment that provides the specific terms for professional services (and schedules or statements of work under that that define a particular engagement).
Actually, responding to your question makes me think of what is perhaps a more-interesting question: how to document ongoing contractual relationships between parties that provide common terms yet are flexible enough to “push down” details to the various attachments.
The IBM Customer Agreement is probably the most common example of this structure, by the way. I don’t have a copy at hand, nor do I recall whether it purports to be confidential information, but IBM does business with so many parties that the ICA (as it is affectionately known) is ubiquitous these days.
Dear 10803: First, a note on etiquette. Normally I’m delighted to entertain suggestions that I’m talking nonsense, but I’d prefer that such suggestions come from someone who is willing to to identify him- or herself.
As to the utility of this post, yesterday I received an email from the CEO of a legal-services company. He noted that his company had just been considering the question discussed in my post. Evidently I’m not the only person who thinks this topic worthy of some attention.
I agree that “master contract” is a well-know transaction concept. But that usage is entirely different from using “master contract” or “master agreement” to mean “template.” Those conflicting meanings is another reason not to use “master contract” or “master agreement” to mean “template.”
But thank you for mentioning the transactional sense of the term “master contract.” I could indeed do with investigating that.
Ken: In terms of contracts from other transactions, another frequent term used by practitioners is “the mother.” As in, “use the ABC Purchase Agreement as the mother here” or “what was the mother for this first draft?”
I have longed despised the term “mother” in this context but stuggled to find a suitable substitute. From now on, I am using your suggested term “precedent contract.”