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Friday, October 29, 2004

Column: Boilerplate Special

My lease is up for renewal, so it’s time for that annual ritual in which I start to read the Lease Agreement, get about two paragraphs into it, and then reach for a bottle.

“Not to worry,” I tell myself, “it’s just boilerplate.”

Boilerplate must rank right up there with laches as one of those legal terms that seem to come from nowhere. The word refers to those bits of legal language that are endlessly repeated in certain documents and, for some inexplicable reason, assumed to be harmless.

Boilerplate is all around us, not only in leases, but also mortgages, loan agreements, subpoenas, powers of attorney, and so on. It is through boilerplate that most ordinary people come to know – and hate – legalese.

The Party of the First Part

With its random verbosity and archaic syntax, boilerplate usually sounds like the product of a 19th Century opium smoker out on a bender. What normal person would, for example, refer to people as “the party of the first part” and the “the party of the second part”? And yet, one study confirmed that lawyers continued to use those terms at least into the 1980’s.

In the 1935 movie A Night at the Opera, the Marx Brothers rip such language to shreds, literally. Groucho, who is trying to lure Chico into signing a contract, reads the first clause aloud: “the party of the first part shall be known in this contract as the party of the first part.” Chico doesn’t like the sound of that and so they agree to rip that part of the contract out. And on they go tearing out clauses up through the “party of the ninth part.”

After tearing up most of the contract, Groucho and Chico disagree about the final clause: "If any of the parties participating in this contract is shown not to be in their right mind, the entire agreement is automatically nullified." Groucho offers the classic defense of boilerplate: “It's all right, that's, that's in every contract. That's, that's what they call a 'sanity clause'.” To which Chico defiantly answers: “You can't fool me! There ain't no Sanity Clause!”

Riveting Language

The term boilerplate originated in the offices of 19th Century American newspapers. Back then, newspapers were printed from metal plates that were cast from mats (short for matrices) made by the paper’s typesetters. Some of the savvier news agencies and syndicates would send out their press releases or columns in pre-cast metal plates that could not be altered. Editors referred to these pre-packaged plates as “boilerplate” because they resembled the standard-sized iron plates that were riveted together to make boilers. Over time, boilerplate came to mean any part of a newspaper that remained unchanged, issue after issue.

Boilerplate became a journalistic cliché. At some point in the last century, lawyers borrowed the term from the field of journalism, and they have yet to give it back.

Blame Gutenberg, and Gates

Although the term boilerplate arose in the 19th Century, the phenomenon is much older – almost as old as law itself.

In medieval English law, transactions and courtroom allegations gained validity by exact repetition of verbal formulas – missing out a single word, or even stammering, could lead to dismissal of one’s case. In the 17th Century, judges could throw out a pleading because, for example, a single Latin word was misspelled.

It was the printing press that saved lawyers from the fear and loathing brought on by those hyper-precise judges. Almost as soon as Gutenberg’s first Bible rolled off the press, English lawyers were putting together formbooks, that is, collections of sample contracts, pleadings, and other documents that had already passed muster with some court or another. Provided that one copied the form verbatim, no sporting judge could object.

Until the late 18th Century, American lawyers simply borrowed from British formbooks, but after gaining independence, there was a demand for something more homegrown. In 1797, New Jersey lawyer William Griffith struck a blow for independence with his Scrivener’s Guide (the title alone gives one goose bumps), which was advertised as being “Useful for all Gentlemen, especially those that Practice the Law . . . .”

Formbooks are convenient, no doubt, but they have the unfortunate effect of bringing out the most conservative instincts of the legal professions. A cautious lawyer (and is there any other kind?) is loath to depart from the accepted form, and that’s a big reason why legal language has become fossilized.

Ironically, modern technology has given a big boost to archaic language, since the word processor makes boilerplate all-but irresistible to busy lawyers. Who wants to reinvent the wheel when a simple cut-and-paste job will have that contract on the partner’s desk in no time? Never mind that the language you’re cutting and pasting was originally drafted by Ben Franklin’s brother-in-law, it still works!

Everyday Boilerplate

Which brings us back to that lease staring me in the face. Although it’s nothing more than pre-printed boilerplate, a small note on the first page informs me that it is written in “plain English format.” That is, it uses the same kind of language that you and I use everyday. Like “material misstatement of fact” (a phrase you will no doubt remember from the film Sex, Material Misstatements of Fact, and Videotape), which appears on page 3 of the lease.

Despite the drafter’s efforts, the lease suffers from all the sins of boilerplate. There is legalistic redundancy, such as the insistence that rent be paid “in full without deduction” or that the landlord shall not be liable for “loss, expense, or damage.” There is also rather troubling ambiguity, such as when the landlord is given the right to “enter the apartment at reasonable hours to: repair, inspect, [or] exterminate.” Pests, one hopes.

The great irony of boilerplate is that it appears most often in consumer contracts, that is, contracts that are meant to be read and understood by the great mass of non-lawyers out there. Take your average mortgage – the most important contract that most people will ever enter into. Here medieval boilerplate abounds, not in some musty book of precedents, but in the most up-to-date forms available. One sample mortgage posted on the internet contains the following provision:

Borrower further covenants and warrants to Lender that Borrower is indefeasibly seized of said land in fee simple. . . .
How many people, one wonders, know what “indefeasibly seized” means? Not me. But fortunately I have a law dictionary, which defines seized (also spelled “seised”) as a “feudal term referring to one possessed of a freehold.” Basically, this term is nothing but a faint echo of the days when men wore stockings and the right to a freehold could be based on actual possession.

Not to deny the charm of using feudal terms, but couldn’t the phrase in question be replaced with something like, say, “Borrower owns the land”?

Boilerplate Special

Boilerplate resists innovation. Nevertheless, large, seismic shifts in law and culture can, occasionally, cause boilerplate to shift slightly.

At the height of the Cold War, for example, some insurance companies added a “nuclear clause,” specifying that the word “fire” does not include a nuclear reaction “whether controlled or uncontrolled.” More recently, some form contracts have begun to recognize “domestic partners” where they used to speak only of “spouses.” In California – according to one report – a lawyer changed the standard provision absolving the parties from liability for “acts of God” to “acts of God or other deities.”

Change is good, of course. But it would be even better if lawyers allowed new language to replace the old. But as every lawyer knows, the “delete” key is infected with cooties, and so new clauses invariably get tacked on to existing boilerplate without anything getting cut.

As a result, going through a contract is like an archaeological dig, with different provisions representing different historical strata. A quick glance at my lease reveals clauses that appear to come from the 1890’s (“trade people must only use … service entrances”); the 1960’s (“No waterbeds allowed in apartment”); and the 1970’s (“Tenant shall conserve energy.”)

Now that I really look at it, I can see that my lease is a jumble of inconsistent, incoherent, and burdensome clauses. I’m going to sign it anyway, of course. It’s just boilerplate.

(This column originally appeared in the October 2004 issue of New York Law Journal Magazine).

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