Boilerplate: Behind the Scenes, but Critical to Success

A recent New York Times article describes the crucial role of a 16-member team at Deutsche Oper Berlin. Those individuals aren’t onstage, but they’re not entirely behind the scenes either. Concertgoers see them briefly, depend on them completely, and then usually stop thinking about them, as if they are invisible. The team’s importance is not readily apparent—until something goes wrong.

This important team is the coat check staff, who on some nights must hand as many as 1,865 coats for 2,000 guests in about 15 minutes. Fire-safety rules partially dictate why the coat check operation is crucial: outerwear and bulky items usually aren’t permitted to remain at the seats, so almost every concertgoer must use the coat check. They come in two concentrated waves, one before the performance and a second shortly after it ends.

Those two fifteen-minute spans may seem incidental, but they aren’t. At Deutsche Oper Berlin, the cloakroom rules appear in the opera house’s published terms and conditions. Large bags, backpacks, suitcases, and similar items must be deposited with the coat check during the performance. The rules also address insurance for checked items, return of property upon presentation of the tag, and what happens if the wrong item is returned or the patron loses their coat check tag. That’s a lot of rules for something that comprises only a few minutes of the concertgoer’s experience.

But that’s the point -- what looks minor from the audience’s perspective is essential from the institution’s perspective. No one buys a concert ticket because of the cloakroom. Yet a well-run cloakroom is crucial to a pleasant concertgoing experience.

If the coat check didn’t run smoothly, the audience would bottleneck in the lobby. The concert might start late or be plagued with late arrivals. Bulky items would create comfort and safety problems. For instance, patrons might object to sharing their scarce legroom with their neighbor’s backpack. And the close of the performance could devolve into chaos. The coat check process that seemed secondary when streamlined would suddenly become impossible to ignore and create an unpleasant end to the evening that eclipsed the musical performance.

As I read about potential coat check chaos, I realized how coat checks resemble boilerplate in contracts. In any contract, whether it be a real estate contract, services agreement, purchase agreement, or operating agreement between business parties, the provisions that get the most attention are those that describe the business deal. Parties focus on provisions for price, timing, scope of work, contingencies, representations, indemnities, default rights, and termination.

But a contract also contains other important provisions, which many people skim because they appear routine, repetitive, or merely “boilerplate.” This article is part of a series on boilerplate provisions and their importance in contract negotiation and performance.

What is Boilerplate?

Many people think of boilerplate as the tiny print on the back of a service contract, something standard and unchangeable. The problem is that people often assume “standard” means “unimportant.” Yet boilerplate provisions frequently determine how the contract operates once the parties stop negotiating and begin performing.

Boilerplate also becomes important when circumstances change, when the parties disagree, or when someone tries to enforce rights that looked clear on paper but become harder to exercise in real life. A contract may have perfectly sensible business terms and still perform badly if the supporting provisions are mismatched, copied carelessly, or left untailored to the transaction.

Plus, just like business relationships aren’t cookie-cutter, “standard” boilerplate language doesn’t work for every contract. Therefore, parties shouldn’t just read boilerplate language; they also should consider whether “standard” language fits their needs.

Notice Provisions

Notice provisions are an obvious example. A contract notice clause describes the process parties must use to provide formal notice to each other, such as when they must declare a default or meet a deadline to exercise an option, make a claim, object to a decision, or terminate the agreement.

A notice clause answers basic but critical questions: who is to receive notice, what type of notice is permitted, when the notice becomes effective, and where it must be sent. However, when a notice provision does not fit how the parties normally conduct business, a party may find itself with ineffective notice and sometimes, catastrophic consequences.

For example, a notice clause may require delivery to an office address that no one uses or has no process for parties to update their address if they move. Or the notice provision may allow only for physical delivery when the parties conduct nearly all of their business electronically. One of my pet peeves is contracts that still require notice by USPS certified or registered mail (or worse yet, fax) – like they did 50 years ago before FedEx and email were the prevalent form of communication.

In these situations, a party in a hurry may send an email, believe the problem has been handled, only to later learn that the contract required something different. Or when the contract permits email delivery, the email may bounce back, leaving the party with no alternative option. In each instance, the party could miss a critical deadline, and that notice clause that seemed insignificant when the contract was signed may have cost the party thousands or even millions of dollars.

Contract Amendment Provisions

Boilerplate amendment provisions create a similar problem. It’s easy at the start of a transaction to assume that if both sides later want to make a change, they can do so. But contracts should say how amendments are made.

If a contract requires a signed writing, that formality can prevent later arguments over whether a phone call, text chain, casual email exchange, or course of dealing modified the parties’ obligations. If the amendment provision isn’t clear or the parties ignore it, they may face a dispute over whether they changed the contract through spoken words, informal exchanges, or conduct.

Like the notice provision, an amendment provision must be practical. It may make sense to require a formal amendment that’s manually signed in a real estate purchase agreement, but that formal amendment makes less sense if someone is engaged in a sequential purchase of goods or services. In the latter instance, it might make sense to allow a less formal process, such as an email agreement.

Successors and Assigns Clauses

Successor provisions may be boilerplate, but they determine whether the contract binds successors to a party, such as the heirs of a contracting individual or a new company formed by merger with the contracting party. Assignment provisions state whether and when contract rights may be assigned.

Like the other “standard boilerplate” provisions, successors and assigns clauses aren’t “one-size-fits-all. “Sometimes, an assignment might undermine the whole point of the deal. For instance, if a company hires someone to perform services, it cares about the identity of the person or entity who will perform them. The company doesn’t want to deal with someone else. On the other hand, it’s customary in a real estate transaction for the buyer to assign to an affiliated special purpose entity. Yet, most real estate sellers don’t want buyers to sign a contract and then “shop” the property for an immediate sale to an unrelated third party.

Since whether a successors and assigns clause is beneficial, neutral, or harmful depends on the circumstances, parties should read and evaluate them before signing the contract. While these provisions look like “boilerplate,” they can and sometimes should be negotiated.

Severability Provisions

Boilerplate severability clauses also deserve more attention than they usually receive. A severability clause addresses what should happen if a contract provision is found invalid or unenforceable. Most “standard” severability clauses say that if part of a contract is found invalid, the rest of the contract will remain in effect.

But sometimes it doesn’t make sense for only part of the contract to remain in effect. Suppose the seller is unable to convey the real estate in a real estate purchase contract. Should the buyer still have to pay the purchase price? Or suppose a venue contracts for a music group to perform a specific program but learns that the music group couldn’t obtain a license to perform that music in public. Should the venue still have to pay the musician even though the musicians cannot lawfully perform the program?

None of this means every boilerplate clause must be exhaustively negotiated in every contract. Some agreements are simple. Some standard provisions will work perfectly well. Boilerplate is not inherently bad. Sometimes it is efficient and sensible. But it should not be ignored merely because it is familiar. The right question is not whether the clause is standard. The right question is what function the clause serves in this particular transaction, for these particular parties, under these particular practical conditions.

Conclusion

Both the opera house cloakroom and boilerplate provisions in contracts are easy to overlook because they aren’t the “main event.” The coat check staff don’t appear on the concert program, and the audience may never applaud them for their work. Contracting parties are unlikely to praise a well-drafted notice clause, amendment, or successors and assigns provision.

Yet both coat check staff and boilerplate contract language are critical to overall performance. And both tend to become most visible at the exact moment when no one wants disruption. By anticipating pitfalls in advance and ensuring that processes match needs – whether for an opera house or a contracting party – the likelihood of disruption can be kept to a minimum.

© 2026 by Elizabeth A. Whitman

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

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties.