Contract Boilerplate - This Is The Entire Agreement ...
As a Delaware Business attorney, whenever I'm asked to review a contract that's been written by another lawyer, an important part of my review is to carefully read the boilerplate provisions which appear at the end of the contract, and to make sure my client fully understands their meaning. "Boilerplate" provisions of a contract are standard provisions you might see word for word in most contracts regardless of what the contracts are about. Here are some examples of boilerplate provisions.
(1) "This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware."
(2) "Neither party may assign this Agreement without the prior written consent of the other party hereto."
(3) "This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, representations and understandings of the parties, written or oral."
Let's focus on the 3rd paragraph. While it may look okay, you'd be surprised how many lawsuits are decided based on this language. What usually happens is that one of the parties to the contract decides to sue for breach of contract. To support his claim, he tries to introduce evidence of oral statements and even emails that were exchanged during the contract negotiations. The question is then raised whether the court can consider that evidence when the contract clearly and unambiguously states that the contract contains the entire agreement between the parties.
The way to avoid this issue from being raised is to make sure every oral and written statement you're relying on is written into the contract. In other words, to play it safe, assume that if it's not in the contract, it was never said.
