Gregory Klass, ‘Boilerplate and Party Intent’

It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules.

A contractual writing, whether individually negotiated and drafted or boilerplate, often displaces other evidence of the parties’ agreement. Plain meaning rules, the parol evidence rule, and the use of formalities can all operate to limit extrinsic evidence of the parties’ intent. But each rule also has special application to boilerplate. Plain meaning rules can serve to generate uniform construction of standard terms or adhesive contracts across multiple transactions. Some authorities suggest that standard terms and adhesive contracts are presumptively integrated, avoiding the standard inquiry into the parties intent to integrate under the parol evidence rule. And the judicial construction of boilerplate language sometimes transforms it into something like a legal formality – words whose legal effect depends on their form rather than their meaning …

Klass, Gregory, Boilerplate and Party Intent (November 4, 2019). Law and Contemporary Problems, forthcoming.

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