Litigation: Who reviewed the contractual boilerplate and what did they forget to tell me?

These seemingly innocuous provisions can contain unexpected business or legal implications for companies

Any business counts on certainty in its contracts. In-house counsel must ensure that any agreement that their company enters into contains a clearly delineated set of rights and obligations. As a result, both internal and external lawyers pore over the minutiae of each contract, exchanging redlined drafts with points that may never have any relevance. This is only after the struggle over which attorney's basic form agreement to use as a starting point for an agreement. 

Although this battle over the forms can seem like a waste of time and resources, it plays a crucial role in the ultimate agreement between the parties. This is because each lawyer's form contains a variety of “boilerplate provisions” that are simply cut and pasted from agreement to agreement. The term “boilerplate” connotes standardized, one-size-fits-all provisions. These “standard” provisions, which may be lengthier than the sections detailing the relevant economic terms, are generally not the subject of negotiation, or in some cases even review by the respective lawyers.  

The merger clause as compared to the non-reliance provision

Merger clauses, also known as integration provisions, are fairly standard in commercial agreements and have nothing to do with the busing of students or the combination of two companies. The typical language may read similar to this statement: "This written agreement expresses the entire agreement between the parties with respect to the subject matter contained herein, and supersedes any prior written or unwritten agreements between the parties or their affiliates with regard to the subject matter of this Agreement."

Contributing Author

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Steven P. Blonder

Steven P. Blonder is a principal in the Litigation and Dispute Resolution practice group at Chicago-based Much Shelist. His practice is primarily focused in the...

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