Section of Litigation

Contract Boilerplate for Litigators

Issues and Tips for Litigators

Commercial and business litigators encounter contracts on a regular basis. Typically, when a dispute arises that involves a contract, they turn first to the provisions in the back of the contract, often disparaged as “boilerplate,” which set forth many of the rules that will govern disputes about the contract.

For the next several months the Commercial and Business Litigation Committee will be publishing a series of articles that discuss various of the “boilerplate” provisions in the back of the contract that litigators typically wrestle with. Although these clauses are familiar and common, they do raise thorny issues that can turn on the law of the particular state, the specific language used and issues of public policy. Litigators need to recognize the issues that can come up and be prepared to deal with those issues.
Stuart M. Riback, Esq., Series Editor, Wilk Auslander LLP, New York, NY

Articles

Avoiding Unintentional Waiver of a No-Waiver Clause
By Julia K. Whitelock – April 11, 2019
Will a boilerplate no-waiver clause preserve a party’s rights when it has acquiesced to non-conforming performance?

Effective Use of Merger Clauses: Part V
By Jason R. Scheiderer and Michael Malone – February 13, 2019
Rule of practical construction of merger clauses in the context of the parol evidence rule.

Effective Use of Merger Clauses: Part IV
By Jason R. Scheiderer and Michael Malone – December 19, 2018
A discussion of the effect of exceptional circumstances on enforcement of merger clauses in the context of the parol evidence rule.

Effective Use of Merger Clauses: Part III
By Jason R. Scheiderer and Michael Malone – August 28, 2018
Effect and enforcement of merger clauses in the context of the parol evidence rule.

Effective Use of Merger Clauses: Part II
By Jason R. Scheiderer and Michael Malone – June 13, 2018
A discussion of the legal effect of merger clauses and various jurisdictions' approaches to them.

Effective Use of Merger Clauses: Part I
By Jason R. Scheiderer and Michael Malone – April 11, 2018
History and use of merger clauses in the context of the parol evidence rule.

Non-Assignability of Contracts Without Counterparty Consent
By Yvette V. Mishev – February 28, 2018
If you value the identity of a vendor as much as you value the vendor’s products, then you need to include a non-assignment provision in your contract.