The History Of Boilerplate Clauses & How To Draft Them Effectively

The RMS Titanic might be the most famous steamship in the world. In 1912, it was certainly the largest.

Roughly 200 years after the rise and fall of the steamship, lawyers still reference it everyday—but not in the way you may think.

Going back in time to the mid-1800s, steel plates were once bolted on the boilers of steamships that contained water. Water, heated by fire, generated steam. The steam was then pumped under pressure into engines; but, with such great pressure comes risk, and to keep the boiler from exploding, extra steel plates were needed on each boiler: a simple yet effective way to control the power of physics and oceanic transportation.

One hundred years later, when the steamship industry was on the decline, the newspaper industry repurposed these large steel plates from decommissioned steamships for their printing presses. Some of the plates contained textual information, such as the newspaper name or city, which would be stamped on each and every page of the newspaper.

The meaning of the term “boilerplate” was thus dichotomous, indicating both the strength and security steel plates provided steamships, as well as the repetitive text that was regularly and identically reprinted (read more at Gianelli & Associates).

In recent years, the word is used primarily by lawyers to mean the fine print at the end of contracts. “Boilerplate” most often represents terms and conditions that are fixed, powerful, and sturdy to match the boilers of its steamship days.

In New York, the boilerplate on the back of Yankees tickets are particularly famous for claiming, “The bearer of the ticket assumes all risk and danger incidental to the sport of baseball,” which disclaims all legal liability if a fan is injured at Yankee Stadium (read more in The New York Times).

This is known as the “assumption of risk” doctrine and even, at times, as the “baseball rule” to personal-injury lawyers who recognize how difficult baseball-stadium injuries are to litigate.

Today, however, the power of the boilerplate may be fading. Boilerplate clauses may not be as unyielding as once thought. In fact, they often lead to unintended consequences.

For example, a liquidated damages clause specifies a predetermined amount of money that must be paid as damages for failure to perform under a contract. While most business contracts contain a damages clause, they’re not always enforceable.

Business counsel can help mitigate challenges to enforceability through careful drafting of liquidated provisions. Attend C4CM’s CLE “Drafting and Negotiating Liquidated Damages Clauses in Business Contracts,” on Wednesday, December 16, 2015 from 2:00 PM To 3:15 PM Eastern.

During this information-packed webinar, our expert faculty will present real life examples and considerations for drafting and negotiating of liquidated damages provisions in commercial contracts. It will provide strategies for anticipating and overcoming enforcement hurdles with the clauses.

Researching the effectiveness of boilerplate clauses will be of titanic help to your firm, as well as your clients, in order to weather the obstacles ahead—icebergs and all.


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