EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.
Q: What is boilerplate language in a contract?
A: Words matter. If I have a professional mantra, this is it: Words matter. Pretty much all of them. And so I read them all. But if you are in the mood to read this article the way I sometimes approach the daily newspaper when I am only moderately committed, you can stop here. Words matter. Read them. Understand them. Everything from this sentence down is slightly superfluous.
“Boilerplate language” refers to words of a definite meaning that are commonly used in the same context in legal documents of like type. The words are usually strung together in phrases that have such settled meaning that we are confident they should apply to the circumstances governed by the document they are in. We are also sure that, once applied, these words will mean the same thing every time. Pick up two mortgages from different banks and you are going to see roughly the same provisions comprised of the same words. This is boilerplate: specific words; known meaning; predictable outcome.
So should you read boilerplate provisions in contracts? Well, yes you should. You should either read and understand them or hire an attorney to read them for you. This is true because knowing what a boilerplate provision says, and deciding whether it should be said, are different things altogether.
Whether I personally read every boilerplate provision in a contract is usually determined by the answer to a simple question: Am I operating in my role as an attorney for a party, or am I a party personally? If I am the attorney and I did not write the document, I read every word, usually several times. I ponder whether each word should exist in context and usually read court opinions to see how the word has been treated. I strike out provisions that are unacceptable and go to work on the other party’s attorney to find language everyone can live with. This can take hours, sometimes even days or weeks.
But if I am personally a party to the contract, whether I diligently mull every word or quickly skip to the signature line depends on the answer to a new question. Is the contract actually negotiable? Mortgages to banks, for example, are usually take-it-or-leave-it propositions. These contracts — called adhesion contracts — are up for discussion next week. Until then, if you’re going to sign it, read it.