Sunday, August 20, 2006

Boilerplate backfire

A news report last week after the ruling regarding the decision against Rogers Communications Inc. that hinged on the use of a comma (I reported on it in a previous blog post) explained, in the words of columnist Beppi Crosariol of the Globe and Mail, an "an ironic twist". Apparently, the contract was not drafted by the parties (Rogers or Aliant). According to Crosariol, it was "a boilerplate document used by all Canadian cable and telephone companies ... hammered out between the Canadian Cable Television Association and ... the former alliance of phone companies."

Personally, I don't find the fact that Rogers' problems can be attributed to the use of boilerplate language particularly ironic. So-called boilerplate language has been around for years and has been used in many contexts and has been subject to criticism by many who have tried to interpret it. Boilerplate language is often used and accepted without much thought or analysis. Indeed, much of the criticism rightly levelled against so-called legalese comes from the un-questioned use of boilerplate language, which some argue is intentionally confusing or drafted in such a way that it can be understood by few.

The twist Crosariol seems to refer to is that usually boilerplate language ends up being problematic (in terms of both interpretation and application) for those not in a position to negotiate a customized contract. In other words, boilerplate wording usually shows up in contracts that are more-or-less "take it, or leave it", like credit card "agreements", auto leases, apartment contracts, etc., where the parties do not have equal bargaining power.

In this case, presumably, the parties were sufficiently equal in terms of bargaining strength and so they could have (and clearly should have) drafted wording that properly described their intentions. In other words, they didn't need to rely on wording drafted by someone else. I realize the argument is that the contract was "standard" in the industry, but standard isn't a synonym for clear, nor does it necessarily mean that it represents what the parties have in mind. (In fact, in this case I think the wording was clear -- and the CRTC thought so too -- it just so happens it might not have properly expressed Rogers' and/or Aliant's intention.)

Boilerplate language is often used because people think it is so standard that it is somehow safe to use it. The argument seem to rest on the idea that it's been around for years and therefore it has withstood scrutiny over time. This is a dangerous assumption, since in many cases the language hasn't, in fact, been tested in a legal proceeding. So, uncritical application of boilerplate language is actually quite perilous.

As much as I'd like to dream that this case might be the beginning of the end of the use of boilerplate language, I'm sure it isn't. But, it might cause a few more to critically analyze boilerplate language with a view toward ensuring it is clear and that it expresses what the business intends.


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