Negotiating and Drafting Contract Boilerplate.
Some consider these provisions, such as choice of law and forum, notices, assignments, force majeure and confidentiality, to be secondary in importance and address them only as afterthoughts. They do so at their peril.
These back-of-the-contract provisions are indeed important, governing the fundamental relationship of the parties and how the contract is administered. Moreover, they're not really standard. Each should be reviewed to see how it applies to the particular contract and whether it really meets the needs of the client.
Negotiating and Drafting Contract Boilerplate not only furnishes many well-drafted forms, it reaches far beyond a form book by analyzing each provision to help you understand its history, business purpose, pitfalls and variations. This enables you to better critique the other party's form or prepare your own preferable version for your particular deal, empowering you to avoid potential problems and achieve a stronger position in negotiations.
In the first two chapters,Tina Stark provides an introduction and then shows how to avoid stylistic and grammatical mistakes that occur frequently when drafting declarations and covenants, which are the typical type of so-called "boilerplate" provisions.
In each of the next 20 chapters, adhering to a well-edited consistent format, one or more noted authors analyze a particular "boilerplate" provision in depth. Each chapter:
* Begins with a practical overview of the common law related to the provision, enabling you to understand to what extent the provision restates or overrides common law;
* Analyzes a typical form of a provision, often contrasting a welldrafted provision with one that's problematic;
* Evaluates the boilerplate provision with valuable "Drafting Notes" that address specific phrases, negotiating postures, shifting of risks between the parties, control by a party, and alternatives; and
* Offers more sophisticated and nuanced variations of the basic provision.
The 20 chapters cover the following provisions, arranged in groups:
* Assignment and Delegation; Successors and Assigns; and Third Party Beneficiaries (parties).
* Governing Law and Forum Selection; Waiver of Jury Trial; Arbitration; and Cumulative Remedies and Election of Remedies (dispute resolution provisions).
* Indemnities; Force Majeure; and Transaction Costs (financial and risk allocation provisions).
* Confidentiality;Announcements; and Notices (communications).
* Amendment and Waiver; Severability; Merger; and Counterparts (determining what constitutes the contract).
* Number and Gender; Captions (interpretative provisions).
* Further and Pre-Closing Assurances.
Finally, in the last chapter, "Putting It All Together," Stark brings together in one place all the provisions previously discussed as they might appear in an agreement, some with shortform and long-form variations, to provide a good basis from which to begin drafting and negotiation.
This text is highly recommended as an addition to your resource materials. Keep it close at hand, as you will find yourself referring to it often. The included CD will also facilitate your electronic drafting.
Negotiating and Drafting Contract Boilerplate (softcover, one volume of approximately 700 pages, and one CD-ROM) sells for $149, is published by American Lawyer Media Publishing, and is available from their Web site, www.lawcatalog.com.
Marvin Goldman is a partner at Thelen Reid & Priest, LLP, New York.
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|Author:||Goldman, Marvin G.|
|Publication:||Florida Bar Journal|
|Article Type:||Book Review|
|Date:||Jan 1, 2004|
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