Book contents
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- 11 Contract as Statute
- 12 Modularity in Contracts: Boilerplate and Information Flow
- 13 Contra Proferentem: The Allure of Ambiguous Boilerplate
- PART FOUR COMMENTARY
- Notes
- Index
11 - Contract as Statute
Published online by Cambridge University Press: 02 December 2009
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- 11 Contract as Statute
- 12 Modularity in Contracts: Boilerplate and Information Flow
- 13 Contra Proferentem: The Allure of Ambiguous Boilerplate
- PART FOUR COMMENTARY
- Notes
- Index
Summary
Editor's Note:When the interpretation of boilerplate clauses is disputed, their meaning ought to be exposed using techniques that resemble statutory interpretation. Boilerplate, the authors of this chapter argue, has many statutory features. Like a statute, it is drafted with a particular intent in mind. Like a statute, it is subsequently used by many parties in varied circumstances. Accordingly, like a statute, it ought to be interpreted with an eye, not to the meaning attached by the current transactors, but to that of the entire industry, as envisioned by the original drafters of the boilerplate language.
The focus of much of the literature on standard-form contracts has been the problem of power and informational asymmetries among the contracting parties. One party dictates the terms — for example, a big consumer-goods producer may draft a standard-form contract that forms a mandatory part of all consumer purchases — and the other party is a passive recipient of the terms.
Boilerplate contracts, however, are found in many markets where the relationship between the parties is not characterized by power imbalances. Instead, we find sophisticated parties on both sides and a multitude of parties employing contracts with slight variations on the same set of boilerplate terms. For example, large portions of the markets for bonds and derivatives are dominated by boilerplate of this type. Our goal is to suggest that the interpretation of boilerplate contracts among sophisticated parties is a topic in need of attention.
- Type
- Chapter
- Information
- BoilerplateThe Foundation of Market Contracts, pp. 145 - 162Publisher: Cambridge University PressPrint publication year: 2007
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