Mark Anderson is the co-author with Victor Woroner of the 5th edition of A-Z Guide to Boilerplate and Commercial Clauses.
This is included in our Company and Commercial Law service.
Back in the 1990s, I had written my first book (now in its 4th edition as Technology Transfer and published by Bloomsbury Professional), and had worked on template agreements for internal use by my firm. I was very keen to understand better why boilerplate clauses were included in contracts, and I thought this would be a good area to explore in a book. None of the existing books really tackled the subject well, in my view. Writing the book would force me to concentrate on exactly why each clause was needed, what the relevant law in the area was, and how best to draft the clause. Originally, the book was a volume of the Encyclopedia of Forms and Precedents which we had also written, and I agreed with the then-publisher to write a stand-alone book version in A-Z format. The book has grown enormously since its first edition, and now runs to over 700 pages.
The most obvious change has been the widespread use of Docusign and similar tools for signing contracts. In my view, this was one of the positive legacies of the Covid pandemic. Suddenly, the vast majority of organisations were willing to use electronic signatures, instead of using wet ink signatures, and often scanning the signed version or signature page, and emailing it to the other party. This willingness has continued after the pandemic.
An obvious challenge will be that parties increasingly rely on artificial intelligence tools when drafting agreements. While this may speed up certain aspects of the drafting process, it runs the risk that the drafter doesn’t carefully check the output to ensure that the drafting is clear, accurate, concise and consistent. The AI tool may perpetuate bad drafting habits, or fail to recognise national differences of law that affect what wording is appropriate for a particular clause. It may also lead to reduced human drafting skills as we do even less freehand drafting.
Understanding boilerplate clauses involves a large number of interesting points of detailed law and practice, rather than a single ‘most interesting’ point. By way of example, I was entertained to read in the national press about the various legal opinions that the Garrick Club received on whether their constitution (a kind of contract) permitted women to be members, and the eventual realisation of those lawyers that section 61 of the Law of Property Act 1925 provided an answer. If the lawyers concerned had read A-Z Guide to Boilerplate and Commercial Clauses, they might have discovered this answer more quickly. As the book has noted since its first edition (eg see the section on Interpretation at page 429 of the 4th edition), section 61 provides that in all ‘contracts …and other instruments …the masculine includes the feminine and vice versa’.
