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  • ON-DEMAND

Boilerplate Clauses in Commercial Contracts (On-Demand)

General Credits:
Original Date Of Course:

$179.00

Course Description

There is an enormous amount of litigation involving boilerplate, as will be evidenced in the materials for this presentation. A slip in drafting a boilerplate provision can be outcome determinative in a dispute. This presentation will provide legal and drafting guidance on how to put together effective boilerplate in contracts.

Principles

  • Boilerplate Is Substantive, Not “Just Boilerplate”
    • Standard provisions can determine rights, remedies, risk allocation, and litigation outcomes.
    • Small drafting differences can have significant consequences when a dispute arises.
  • Drafting Must Start With the Governing Law
    • Effective boilerplate requires understanding the statutory, common-law, and judicial rules governing the provision.
    • Counsel should not assume that a familiar clause will have the same meaning or enforceability across jurisdictions.
  • Precision Matters—Especially Where Rights Are at Stake
    • Boilerplate should be drafted with the same care as the substantive business terms.
    • Ambiguity, inconsistent terminology, undefined concepts, and unintended interactions between provisions can create costly disputes.
  • Consider How Provisions Work Together
    • Boilerplate clauses should not be drafted or reviewed in isolation.
    • Provisions concerning governing law, dispute resolution, indemnification, limitations of liability, waivers, notices, assignment, force majeure, integration, and severability, for example, may interact in ways that materially affect the parties’ rights.
  • Draft for the Dispute You Hope Never Happens
    • Counsel should ask how the clause will operate if the relationship breaks down and the contract ends up in litigation or arbitration.
    • The best boilerplate anticipates foreseeable disputes, allocates risk deliberately, and minimizes opportunities for competing interpretations.

Syllabus

  1. Why is boilerplate important
  2. The importance of knowing the law underlying the boilerplate
  3. General principles of drafting boilerplate
  4. Drafting suggestions for common boilerplate provisions

Credit Details

Course Type

Course Instructor

Edwin E. Smith, Esq., Steve Weise, Esq.
Original Date Of Course

General Credits

1.5
Edwin E. Smith, Esq.
Edwin E. Smith, Esq.
Edwin E. Smith, Esq. is a senior consultant at Morgan, Lewis & Bockius LLP specializing in general commercial and insolvency law, with extensive teaching experience in secured transactions and trade finance at Boston University Law School, Harvard Law School, Northeastern University Law School, and Suffolk Law School. As a Uniform Law Commissioner for Massachusetts, he has served on numerous drafting committees for Uniform Commercial Code revisions and amendments, currently serves on the Permanent Editorial Board for the Uniform Commercial Code, and holds leadership positions in the American Law Institute, National Bankruptcy Conference, and American College of Bankruptcy.
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Steve Weise, Esq.
Steve Weise, Esq.
Steve Weise, Esq. is a partner in the corporate department of Proskauer Rose LLP and a Lecturer in Law at UCLA Law School, where he teaches Uniform Commercial Code – Secured Transactions. He serves as a member of the Permanent Editorial Board for the Uniform Commercial Code and the Council of the American Law Institute, and has spent three decades on UCC drafting committees, including the comprehensive revision of Article 9 and recent amendments addressing digital assets as collateral.
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