From its beginnings as a standardised plate of steel used as a template in the construction of steam boilers in the 19th century by manufacturers, boilerplate has now become common parlance in relation to “standard” contracts/ clauses, code or copy.
In relation to contracts, depending on which lawyer you talk to or which internet search you conduct, you may get a different explanation as to what boilerplate means. The explanation can range from any “usual” clause found in a contract or a “standard” contract itself to clauses “usually” found at the end of a contract.
The complication with the internet is that many sites use the word as being a starting point or synonymous with “standard”. The latter, in particular, suggests perhaps “everyone includes it” or “it’s always there”, giving rise to an implicit interpretation that it’s all pretty non-contentious.
That is rarely the case.
For example, one website, taking the broader definition of boilerplate as typical clauses that might appear in a contract, lists an indemnity as one of those clauses. In some instances, yes, an indemnity is sometimes included in contracts, but the inclusion of and content of an indemnity depends on the contract’s commercial context and other provisions. It is an example of a provision I would not consider “standard” across the board. To include it in a list alongside more usual clauses belies its significance. It has very serious consequences, and as such, anyone being asked to give an indemnity should make an informed decision to do so rather than assume it is standard or usual in any way.
So, if you are going to rely on sites that offer guidance to make decisions about a commercial contract or a clause within that is being described as boilerplate, then at least understand the following:
- If the definition of boilerplate is along the lines of “typical clauses included in a commercial contract”, – it will likely include clauses that may or may not work for you (you will need to consider in the context of the transaction and whether you’re buying or selling goods or services and the nature of the services).
- If the site you are looking at or the person you are talking to describes “boilerplate” as an entire template contract – make sure you are comfortable that it covers what you want. Many of the sites that sell templates exclude liability for the content, and/or they charge additional fees for you to get the benefit of talking to someone and explaining your business so that they can give you the comfort that you’ve got the suitable template.
- Other sites refer to any clauses found in a commercial contract, usually at the end of the contract, that make the contract “work” as a contract. But it by no means makes them applicable to every scenario.
Looking at all of the definitions out there, I’ll stick with my own very cautious definition of boilerplate clauses in commercial contracts:
“Clauses usually at the end of a contract:-
- which are very likely to apply regardless of who you are acting for or the type of commercial deal and
- if any tweaks are required, they are very likely to be non-contentious”.
For the reasons above, my list is a list of about 5, a huge difference from the reference to the 40-odd clauses on some websites.
If you have any questions about boilerplates, please get in touch today: tracey@law-point.co.uk or call 01202 729444.
