Mark Anderson - A-Z Guide to Boilerplate and Commercial Clauses

AZ Guide to Boilerplate and Commercial Clauses

Fourth edition

AZ Guide to Boilerplate and Commercial Clauses

Fourth edition

By

Mark Anderson

Solicitor, Anderson Law LLP

and

Victor Warner

Solicitor, Anderson Law LLP

In previous editions of The AZ of Boilerplate Clauses , the precedents have been available separately on a CD-ROM.

For the new 4th edition, the precedents are available to download electronically from www.bloomsburylawonline.com/boilerplate.

They are password-protected and the password is BJG36hzP.

They can be downloaded individually or in totality.

If you have any problems downloading the precedents or have any questions, please contact Bloomsbury Professional customer services on 01444 416119 or by email at .

For a Licence agreement relating to the use of this Data, please see overleaf at p vi.

The Data on www.bloomsburylawonline.com/boilerplate is Bloomsbury Professional 2017.

Bloomsbury Professional (the Publishers) grant you a non-exclusive and non-transferable licence to use the Data from www.bloomsburylawonline.com/boilerplate.

You may download, copy or print the Data from www.bloomsburylawonline.com/boilerplate for private use or use in the ordinary course of your business but you may not make any profit from the use of the Data other than would ordinarily be made in the course of your business. You may not sell the Data under any circumstances or make or sell any copy or reproduction of it. You may not copy or print out any part of the Software for any purpose or make any modifications to the Software.

If you have any queries about the use of the Data from .

The goal we set for the first edition of the AZ Guide to Boilerplate and Commercial Clauses , back in the 1990s, was that it should be a useful source of information across the main areas covered by boilerplate clauses.

As the title states, this is the fourth edition, but the goal remains equally true this time around to provide a sourcebook of:

precedent material;

the key reasons for including a particular boilerplate or commercial clause;

the essential legal principles underpinning a boilerplate or commercial clause; and

practical points to consider when drafting or understanding a boilerplate or commercial clause.

So what is new? As in previous editions, we continue to add to individual sections, by providing more guidance and example wording, and taking account of new statute and case law.

Since the third edition, several new legislative measures have appeared, such as the Consumer Rights Act 2015, the Trade Secrets Directive (2016/943) and the General Data Protection Regulation (2016/679). They have modified or added to existing law, of course, but not to the extent that substantial new or additional wording will be necessary for a mainstream commercial contract (as far as we can tell at present!).

The same applies to the many cases on boilerplate clauses which have been reported since the third edition; too many to be listed here. Many of these cases concern the meaning of a contract clause (or words within a clause). A couple of examples will suffice:

a force majeure clause is a classic boilerplate provision and a topic which, as far as significant new case law is concerned, appeared to have fallen asleep for several years. Then there is one new case which helps focus attention on the meaning of beyond reasonable control;

the perennial classic, the entire agreement clause. If it includes wording such as supersedes any prior written or oral representations then it is not enough, normally, to exclude liability for pre-contract representations.

Even if new cases dont affect how clauses of this kind should be worded, it is valuable to see how the court interprets them.

This book is a companion to Drafting and Negotiating Commercial Contracts , the fourth edition of which appeared in December 2016. The preface to that edition reported a (third party) view that lawyers had become copy and paste monkeys. The same is just as true of non-lawyers, especially as so many terms and conditions are now available online for them to copy and paste.

This book is one of the answers to that criticism. By providing the reader with information on the meaning and use of boilerplate clauses, he or she can avoid the mindless repetition of contract wording.

Another point made in the preface to Drafting and Negotiating Commercial Contracts was the strong message sent out by the most senior courts in the UK (in cases such as Rainy Sky SA v Kookmin Bank [2011] UKSC 50 and culminating in Arnold v Britton and others [2015] UKSC 36) that parties are bound by the words they have chosen to use in their contracts. Just because they draft their contract poorly, or one or both parties is commercially disadvantaged or has made a bad deal, the answer from the courts is likely to be: tough.

In signing off, we would like to mention a countervailing message. That it is easy for the parties to depart from the wording of their contract. A no amendment, no variation clause is one found in many contracts, and typically provides that the parties to contract cannot amend or vary their contract unless they comply with a particular procedure or formality. Recent court decisions have decided that such wording is of no effect if the parties subsequent conduct or oral agreement is sufficient to vary or amend their contract.

This is due partly, no doubt, by the lack of formality required to enter into legal relations under UK law. But this second message is really all part of the same approach of the courts, that in the event of a dispute, a court will look at the objective reality of what has occurred, not what the parties think has occurred. Not only must the contract drafter or user pay attention to the words they use, but also to their own behaviour. Having a judge pick over what you say or do is rarely a happy experience. This book and its companion can help with the first message; as to the second: watch your step

Mark Anderson and Victor Warner

www.andlaw.eu

August 2017

Driftwood : Oh thats the usual clause. Thats in every contract. That just says, uh, it says, uh, if any of the parties participating in this contract is shown not to be in their right mind, the entire agreement is automatically nullified Thats what they call a sanity clause.

Fiorello : Ha, Ha, Ha, Ha, Ha. You cant fool me. There aint no Sanity Clause!

A Night at the Opera, Marx Bros. (MGM Studios, 1935)

References at the right-hand side of the column are to page numbers.