Session #2 Language of Contract Drafting: Major contractual provisions

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What Is a Contract?

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A contract is a legally binding agreement made between two or more parties. It can be in writing or in oral form and can contain a single provision or thousands of them.

For example, if A orally agrees to pay B $10 for a book, this agreement constitutes a contract. Each provision of a contract is a contractual obligation; failure to comply with any of the provisions results in the breach of the contract.

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What Is a Contract?

Substantive Provisions

Substantive provisions identify the parties to a contract and establish their rights and obligations. All contracts have substantive provisions. For instance, a loan agreement specifies the names of the debtor and the creditor and requires the creditor to give money to the debtor in return for interest.

Boilerplate Provisions

Most contracts contain several boilerplate provisions. These are the standard terms used in a certain category of contracts.
Boilerplate provisions are usually grouped together at the end of the contract under "Miscellaneous," "General," or some other similar subheading. However, they hardly have anything in common between them.

The importance of a boilerplate provision often becomes conspicuous by its absence. For example, if there is no provision for paying attorneys' fees by the non-prevailing party and a dispute arises, the parties may find it difficult to retain a lawyer to take up the case.

Boilerplate Provisions Substantive?

Despite being standard and dumped at the end, boilerplate provisions may vary with the contract and can be as significant as the substantive provisions. They impact the manner of dispute resolution and contract enforcement.

Boilerplate Provision Importance?

The importance of a boilerplate provision often becomes conspicuous by its absence. For example, if there is no provision for paying attorneys' fees by the non-prevailing party and a dispute arises, the parties may find it difficult to retain a lawyer to take up the case.