boilerplate provisions

After putting all of the specific deal points into a new contract, you are just about finished.  All you have to do now is add in the “Miscellaneous” section with all of your boilerplate provisions like force majeure, choice of law and a few others.  You have drafted so many contracts for so many years that you do not even know where some of these boilerplate provisions came from, let alone remember all of the implications of each.  Even more dangerous, there may be some boilerplate provisions on which you rely that may not be as enforceable as you think.  Take, for example, a standard clause appearing in many contracts stating the following:  “Nothing in this Agreement is intended to create any enforceable right in favor of any non-party to this Agreement.”

For sure there is no downside to including such a clause in a contract.  Indeed, Professor Corbin, one of the preeminent authorities on contract law has said, “If two contracting parties expressly provide that some third party who will be benefited by performance shall have no legally enforceable right, the courts should effectuate the expressed intent by denying the party any direct remedy.” (Corbin on … Keep reading