I'm about to upload the Adams Contracts boilerplate template. You might notice that some standard boilerplate is missing. This post identifies what's missing, and why. If you have any requests or suggestions, I'd be pleased to hear them.
Counterparts
Here's what I say about the "counterparts" provision in this 2021 blog post:
For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that.
And whatever counterparts are, the issue raised is in fact such a nonissue that it’s not worth addressing in it a contract. I’ve not found anything suggesting that signing in counterparts can be challenged as making a contract unenforceable. It follows that the only function of the counterparts provision would be to reassure anyone who’s nervous about that. That’s not a worthwhile function.
Cumulative Remedies
The title of my 2018 blog post on "cumulative remedies" provisions will tell you where I stand: Cumulative Remedies? No Thanks.
Further Assurances
In this 2018 blog post, I boil "further assurances" provisions down to this:
Additional Documents. At the written request of the other party, each party shall provide the requesting party, or sign for the requesting party, any additional documents required to consummate the transactions contemplated by this agreement.
But I've decided I don't find that compelling.
Limitation of Liability
Some boilerplate I've omitted because it says the obvious. Other boilerplate I've omitted because it's stoopid. But I'm omitting limitation-of-liability provisions because they're too much of a mess.
As I note in this 2020 blog post, all sorts of stuff is dumped in limitation-of-liability provisions. The fifth edition of A Manual of Style for Contract Drafting contains an entire provision addressing just one meaning of one item that features in limitation-of-liability provisions, namely the phrase consequential damages. (This 2022 blog post contains a close-to-final version of what ended up on MSCD.) For now, I'm not inclined to include that provision in our boilerplate template as the only component relating to limitation-of-liability provisions. Further work on limitation-of-liability provisions is on my to-do list.
Mediation
I point you to my 2014 blog post, Add a Mediation Provision to a Commercial Contract? Meh.
Successors and Assigns
In this 2013 article, I consider seven possible functions of the “successors and assigns” provision and find them all wanting. Here’s what I conclude:
[I]t’s a useless provision that survives because drafters are unsure what function it serves and so are loath to get rid of it. And it’s sufficiently obscure that one can project onto it all sorts of unlikely meanings.
Survival of Provisions
It's commonplace for a contract to say that the dispute-resolution provisions and other boilerplate survive termination. That’s unnecessary—it goes without saying that after the contract terminates, a party may bring a claim in accordance with the boilerplate, subject to whatever limits the law provides.
Which Part Controls
I'm open to including a provision saying that if there's a conflict between that contract (or something else) and one or more other documents, one of them prevails. But because how it's worded would depend on what's being compared to what, it would be a bit of a nuisance. I'll wait to see whether users ask for it.
