Performing From Memory and Eliminating Unnecessary Contract Provisions

One noticeable distinction between an orchestra musician and a soloist is that the orchestra musicians have their music in front of them on a music stand. Soloists playing with an orchestra usually perform from memory. 

There are many explanations why soloists are expected to perform from memory. Some view it as a sign of mastery to have memorized the music. Or, they believe the soloist has more opportunity to practice and master the piece and therefore, does not need music. Some believe that musicians perform better and have more freedom to move when they are not tethered to music on a stand. 

Audience members might believe that putting music in front of a soloist can obstruct the view of the soloist. To them, this interferes with the visual impact of the soloist’s performance. 

As a performer, I was annoyed by the tradition of requiring performances from memory. I felt the musician’s need to communicate to the audience should come above rigid traditions. Nevertheless, the tradition is so ensconced even in my mind that it surprised me earlier this year to see a professional violinist perform a Prokofiev violin concerto with orchestra with the music on a music stand in front of him. 

Intrigued, I watched the violinist to see if he only needed the music for some passages. It would make sense, I reasoned, to have the music available to view if there were a passage where his memorization was not solid. It was clear that the violinist was not reading every note from that music, but he did appear to glance at the score a few times during his performance. 

Preparing contracts can be like using the music for a performance. Like musicians are expected to perform from memory even when it does not serve them well, contracts include boilerplate language which does not add to the contract’s purpose. This article is one in a series about boilerplate clauses and why they should be considered when preparing contracts. 

What Are Boilerplate Clauses and Why Do Contracts Have Them? 

When many people talk about boilerplate, thoughts immediately may go to the fine print on the back of a pre-printed contract–and that is a type of boilerplate. I define boilerplate as any standard contract language included in every contract without thinking about or even reading it. 

As discussed in a number of my previous articles, boilerplate is important. Boilerplate language addresses concerns that are common to many contracts, including how the contracts are to be signed, interpreted, and changed and how the parties should provide notices, to name a few. Parties should always read, and if necessary, modify, boilerplate language to fit their needs. 

When Can Boilerplate Clauses Be Omitted? 

Although boilerplate clauses can be important, sometimes, they may not fit a particular contract situation. Following are circumstances under which the following boilerplate clauses may not be required: 

Choice of Law Clause A choice of law clauses makes it clear which state’s law will be used to interpret a contract when there are several choices. However, if all contracting parties are organized and doing business in the same state and the contract is to be performed in that state, this clause may not be necessary. 

Jurisdiction and Venue Clauses. Like the Choice of Law Clause, a Jurisdiction and Venue Clause selects a court for any litigation arising out of the contract. If all the contracting parties only do business in the same county in which the contract will be performed, this clause may not be necessary. 

Notice Clause. Notice Clauses describe how and where the parties must delivery notices under the contract. This clause may not be necessary in simple contracts, such as a contract for a one-time service or to buy a single product. Even where needed it is important to review the means of delivery in a notice clause. If the parties no longer use fax machines, then  notice by fax isn’t necessary. If the parties are 1,000 miles apart, hand delivery might be impractical. If the only notice address is a P.O. Box, then Fed Ex notice (which cannot deliver to P.O. Boxes) doesn’t make sense. Allowing notice by email makes little sense if the parties’ email addresses aren’t listed in the contract. 

Headings Clause. This is a clause which I do not include in my contracts. It says the headings don’t change the meaning of the language in the sections. It is better to write appropriate headings or if in doubt, do not include headings in sections. 

Gender Clauses. These are clauses that state that references to “he” also include “she” (rarely do these clauses also reference that they include they as a pronoun). Rather than using this antiquated attempt to be inclusive, write a contract using inclusive language that avoids reference to gender. 

No Recording Clause. Many real estate contracts include a statement that they are not to be recorded. In order to be recorded, most states require a legal description and notary acknowledgment. Some also require witnesses. If the document is not in recordable format because it doesn’t have a legal description and isn’t notarized, this clause is superfluous. 

Confidentiality Clause. Confidentiality clauses have their place. However, some contracts, such as those intended for recording (see above) will be in the public record. Confidentiality clauses have no place in those contracts. 

Authority Clause. Authority clauses state that the person signing a contract has the legal authority to act on behalf of the contracting party. Although this might be appropriate when the contracting party is a corporation, limited liability company, or other entity, authority clauses are unnecessary in a contract between individuals. 

Time is of the Essence Clause. Deadlines in a contract may be critical, such as in a contract for delivery of goods or supplies needed for a project. in a construction contract, or even in a real estate purchase contract. By adding a time is of the essence clause, the parties are implicitly agreeing that failure to strictly comply with contract deadlines or timeframes is a material breach of the contract. However, time is of the essence clauses may not make sense in contracts that do not have strict deadlines, such as a confidentiality agreement or certain employment contracts. 

Does it Matter if a Musician Plays from Memory or if There are Unnecessary Clauses in a Contract? 

Although tradition might demand that musicians perform from memory, some professionals are pushing for making music to supersede tradition. Many times, performing from memory enhances the performance by allowing the performer to communicate more freely without the barrier of a music stand between the musician and the audience. However, where performing from memory would detract from the performance, it should not be required. 

Likewise, the needs of the contracting parties and their unique situations, rather than rigid inclusion of boilerplate, should govern contract language. Parties to contracts should read all language in their contracts and consider its impact on their situation. Contracting parties should modify language so it reflects their intentions. And, the parties should eliminate any contract language that does not make sense in the context of their plans. 


© 2018 by Elizabeth A. Whitman 

 Any references clients and their legal situations have been modified to protect client confidentiality.


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