About this course
On day one, we focus on warranties, indemnities and limitation of liability. On day two, we move on to boilerplate clauses, including entire agreement, force majeure and law and jurisdiction. For each topic, we explain the meaning of the term used, how the courts interpret it, and relevant practice points, and discuss examples of drafting.
The course is designed for lawyers and commercial managers who have at least two years’ experience of drafting and negotiating contracts, and who wish to increase their technical understanding of legal clauses.
Please note that this course considers the legal and commercial context of the clauses and discusses how to draft them. In other words, we focus on technical skills and not on commercial positions, though the latter will be seen in some of the examples that we use. It is not a course on contract law (it is assumed you will have an understanding of this subject if you are drafting contracts) and we don’t attempt the impossible task of telling you what contract risks your organisation or client should find commercially acceptable. These points may seem obvious, but occasional experience of different expectations from a few attenders suggests that these points need to be made explicitly.
Specific topics to be considered in the workshop will include:
- The meaning of terms such as warranty, representation, covenant, term and condition
- Examples of good and bad drafting practice
- Techniques for limiting or extending the effect of warranties, indemnities and other terms
- International issues, including the use of US legal expressions such as “hold harmless”
- The purpose of boilerplate clauses, whether they are needed, and associated practice points
- Drafting tips
Preparation for the course
Although not essential, attenders may find it helpful to read the following practitioner texts as preparation for the workshop:
Drafting and Negotiating Commercial Contracts, Mark Anderson and Victor Warner (3rd edition, Bloomsbury Professional, 2012)
A-Z Guide to Boilerplate and Commercial Clauses, Mark Anderson and Victor Warner (3rd edition, Bloomsbury Professional, 2012)
Comments from previous attenders of this course:
- Excellent speaker. Very well explained – easy to follow and understand.
- Very useful course. Of particular relevance to me were refs/comparisons to other jurisdictions, especially the USA. Unexpected and refreshing for an English law course.
- Plenty of opportunity to ask questions and discuss.
- I feel far more confident [after attending course] that I know what the key issues and pitfalls are.
Learning outcomes
At the end of the course, attenders should have a better and more detailed understanding of risk-management provisions and certain boilerplate provisions in contracts, including the meaning of legal terminology and its correct usage in such provisions, certain negotiating issues that arise, some typical provisions that are encountered, how to analyse and assess such provisions, and some of the main case law on interpreting such provisions. Attenders should have greater confidence in challenging badly-drafted provisions and recognizing when “conventional wisdom” is not supported by case law.
Course schedule
DAY ONE PROGRAMME: Warranties, liability and indemnities
09:45 Introduction
- Why are these clauses needed? Why are they so difficult to understand
- Getting the client’s attention and instructions on complex “legal” clauses
10:00 Promises, promises
- Representations, warranties, covenants, undertakings, terms
- Conditions precedent and subsequent; promissory conditions; disclaimers
- Unknown facts: who should bear the risk?
- Different levels of warranty: absolute, best of knowledge, actual knowledge
- Exclusion of matters known to warrantee: due diligence and use of disclosure letters
- Other ways of qualifying warranties: time limits, lower and upper value limits
- Consequences of breach: termination, specific remedies, liability, indemnities
[Comfort break at around 10:45]
11:00 Promises, continued
11:45 Limiting, excluding and apportioning liability: liability and indemnity clauses
- Excluding and limiting liability, including: direct and indirect losses
- Apportioning liability, including: indemnities and hold harmless distinguished
- Relationship between liability and indemnity clauses
[Comfort break at around 12:00]
12:15 Drafting exercises on warranties, liability and indemnities; followed by answers
13:00 Day one ends
DAY TWO PROGRAMME: selected boilerplate clauses
09:45 Introduction
- What is meant by “boilerplate” and where does the expression come from?
- Why are these clauses important? Which are the “core” clauses?
10:00 Discussion of law, practice and drafting issues affecting selected boilerplate provisions:
- Assignment and novation
- Best and reasonable endeavours
- Entire agreement; force majeure
- Interpretation; law and jurisdiction
- Notices; termination; third party rights
[Comfort break at around 11:00]
11:10 Discussion of selected boilerplate clauses, continued
12:15 Workshop on warranties
[Comfort break at around 12:00]
13:00 Course ends
See the full course details, tutor biography, fees and cancellation terms on the UCL Laws website
