Boilerplate: Deconstructing the fiction of contract

Contract, the legal obligation resulting from the parties’ agreement,¹ has long been imagined in the United States as an exercise in agency and a manifestation of free will.² With the turn toward emancipation in the nineteenth century, contract figured in contrast to slavery. It offered a worldview that idealized self-ownership and voluntary exchange, and it served as a manifestation of freedom.'’ Notwithstanding courts’ so-called “objective” approach to contract since the nineteenth century, they continue to invoke the rhetoric of a “meeting of minds” between parties.⁴ Judges routinely examine contract terms to ascertain parties’ intent,⁵ and they summon a master narrative involving parties freely transacting, negotiating terms, and meaningfully agreeing. This traditional paradigm of contract involves “dickered for” or meaningfully considered terms reflecting agency and choice.⁶

The traditional story of contract implicates a number of fictions. These include a validating original moment of agreement involving knowledge and unconstrained choice as well as a delineated context, which enables such agreement. The framework of contract eschews a counter-model—that of “boilerplate,” or the non-negotiated fine-print contract language recognized as an attenuated expression of will. A notionally distinct form of contract language, boilerplate also functions as the very medium of contract. Boilerplate thereby demonstrates the tensions inherent in contract as a vehicle of freedom. In addition, although the idea of boilerplate implicitly marks its distinction from the traditional notion of contract terms, boilerplate arguably serves as a paradigm of contractual expression. As such, a view of contract as boilerplate could serve to facilitate experiences of autonomy and choice—the ideals contract imagines.⁷

A brief parable featured in contract case law makes salient the imagined terrain of contract. In a case involving the timing and implications of contractual notice, Judge Pierre Leva! presented a story of contractual relations by analogy. This anecdote can also be read as a story about the fictional elements that inform contract in the law.⁸

In Rcgister.com v.Verio (2004),⁹ the Second Circuit Court of Appeals rejected a firm’s claim that it was not bound by terms it received following a similar transaction. Judge Leval’s opinion in the case illustrates the dynamic of obligations accruing to a party as a result of notice—orpresumed knowledge—and an act of free choice. Telling a tale of contract, the opinion conjures plaintiff, “P,” who “maintains a roadside fruit stand displaying bins of apples.” It also tells of “defendant D,” “a visitor” who “takes an apple and bites into it.” The moral of Judge Leval’s story' is explicit; the opinion explains that D, after seeing a sign that “says ‘Apples—50 cents apiece,’” “cannot continue on a daily basis to take apples for free, knowing full well that P is offering them only in exchange for 50 cents in compensation.”¹⁰ Instead, “such circumstances” involve a choice, specifically, “to take the apple on the known terms of the offer or not to take the apple.”¹¹ Knowledge and agency thereby serve as the lynch-pins to the resulting obligation in the tale. At the same time, the fictional backdrop and elements of the parable (including the roadside stand, the apple, the clear terms, two individuals transacting,¹² and the possibility of leaving the apple at the stand) reflect a circumscribed context in which power, constraint, and attenuated communication fail to figure. The roadside stand suggests a level field as a backdrop for an intuitive story of obligation and agency. Indeed, the bite of an apple itself conjures knowledge and free choice in our imagination.

The actual case in Register.com involved sophisticated actors, business entities in conflict about, among other things, the binding nature. Yet the fictional parties at the fruit stand figure implicitly as individuals, which in turn suggests the primacy of individual will and the model of unmediated meeting of minds in contract’s master narrative. The fruit-stand vignette also recurs in subsequent case law in a way that highlights the limits of this imagined landscape. A district court invoked this same parable to enforce a forum-selection clause in Facebook’s terms of service against an individual user (who was thus prevented from suing Facebook in his home state).¹³ In contrast to the fruit-stand story, the parties to the case occupied starkly different bargaining positions confronting terms more opaque than “Apples, 50 cents apiece.” In fact, terms indicating product and price have been identified as particularly accessible articulations of the parties’ desires in a -transaction.¹⁴ As such, these essential terms¹⁵ arguably constitute contract’s special case or the exception to contract expression, while the Facebook scenario hews closer to the (non-fictional) experience of contract. Given the reality of the fine print, in attempting to invoke the framework suggested in Register .com, the district court insisted, “For purposes of this case, suppose that above the bins of apples are signs that say, ‘By picking up this apple, you consent to the terms of sales by this fruit stand. For those terms, turn over this sign.’”¹⁶ As the court’s instruction suggests, the obscure, non-negotiated standard terms —the so-called “boilerplate” ubiquitous in contract documents—either fail to figure in the fictional story' of contract or, when they do, threaten to undermine the coherence of the parable.

Jacques Derrida’s work in deconstructive theory' illuminates various fictions of contract, including the marginalization of boilerplate. Most fundamentally, perhaps, deconstruction “consists] ... in reversing and displacing a conceptual order.”¹⁷ This approach of upending a hierarchy invites us to reconsider the place in our thinking of boilerplate, contract’s presumptively parasitic form. Doing so also prompts an examination of the presumed context in which contract purportedly operates.

Derrida counters an understanding of expression as representative of a preexisting originary signified; he suggests instead a process of meaning-making in which “every sign ... presupposes a certain absence.”¹⁸ He identifies the possibility of an absent sender—an elusive origin—and/or indeterminate destination as a necessary condition of writing, which for Derrida encompasses all meaningmaking. Challenging the presumptive primacy of intentional expression, Derrida points instead to citation, whereby any sign can “break with every given context,” as the conceptual standard.¹⁹

Boilerplate—language designated as standard or reiterated—is thus necessarily unmoored from an identifiable intentioned origin or context of production. As such it epitomizes this possibility of repetition, which Derrida suggests is implicit in all human experience.²⁰ In addition, he asserts, not only must the mark signify out of context, but context itself (rather than existing as a “determining center”) must be understood as contingent and constituted by the expression in question.²¹ Boilerplate instantiates this process as well, at times manifesting disparities in power. It thereby calls into question the circumscribed and presumed-level terrain suggested in the fruit-stand scenario.

The etymological origins of the term “boilerplate” further reveal a figure of portability and standardization. Coined in connection with the steam engines of the Industrial Revolution, “boilerplate” referred by the end of the nineteenth century to the syndicated newsprint casts, conveyed from one newspaper to another.²² Boilerplate’s etymological antecedents invoke physically transportable and recontextualized writing,²³ suggesting the disseminative process of meaningmaking.²⁴ By the twentieth century, boilerplate referred figuratively to generic expression, especially the formalized standard language of contract.²⁵ As suggested by its signification in legal discourse, as well, the concept of boilerplate highlights and challenges the dominant contract narrative.

A Supreme Court opinion that is the first to use the term “boilerplate” in connection with contract illustrates the way boilerplate figures in relation to both the imagined and experienced contract framework. In National Equipment Rental, Ltd. v. Szukhcnt (1964),²⁶ Justice Hugo Black’s dissenting opinion invokes a narrative of contract as an expression of intention and unconstrained agency through fixed, legible signs. Yet the opinion also suggests the way boilerplate complicates this model and challenges the fiction of contract as unequivocal agreement. Addressing whether two farmers in Michigan could be sued in New York for payment on their leased equipment because they agreed to submit to the jurisdiction of courts in New York,²⁷ the case engages, among other things, the issue of meaningful choice at the heart of contract. While the majority of the Court found jurisdiction to have been established, the decision rested on the ultimate delivery' to the farmers of service of process by a New York resident designated in the terms of the contract as their agent.²⁸ The majority opinion implicitly treated contract as a vehicle for the realization of actual intentions and it this view that Justice Black’s dissenting opinion pointedly explores.²⁹

Justice Black’s dissenting opinion marshals a stark distinction between “genuine agreement” and its ostensible “weak” counterpart—a bright line that boilerplate ultimately blurs. His dissenting opinion rejects the validity of the contractual appointment of an agent for service of process to establish jurisdiction of a distant court over the parties. In doing so, Justice Black’s dissent tells a story' of inequity at odds with contract. It highlights deviations from the notional paradigm of contract in the company’s “standard printed form obviously prepared by [its] New York lawyers.”³⁰ Among other things,³¹ Justice Black’s dissenting opinion asserts that it “def[ies ] common sense” to treat this case, involving one party which “at its leisure and drawing upon expert legal advice, drafts a form contract” as “an agreement coolly negotiated and hammered out by equals.”³² Indeed, he doubts the likelihood “that these Michigan farmers ... were in any' position to dicker over what terms went into the contract they signed.”³³ As such, Justice Black views the “printed form provision buried in a multitude of words” as “too weak an imitation of a genuine agreement” to serve as an effective waiver of the right to be tried in one’s home state.³⁴ Instead, he argues, such a waiver “must be deliberately and understand-ingly made and can be established only by clear, unequivocal, and unambiguous language.”³⁵ Dismissing the claim that the farmers read or could understand the implications of the provision, he asserts, “The idea that there was a knowing consent of [these individuals] to be sued in the courts of New York is no more than a fiction—not even an amiable one at that.”³⁶

One might be inclined toward Justice Black’s reading of the inequities in this case and his characterization of a fiction of consent. At the same time, deconstruction complicates his account of the actualization of “genuine agreement” and the paradigm of the “clear, unequivocal, unambiguous language” of contractual waivers. As Derrida suggests, the production of meaning through signs inherently' involves a rupture that is “inscribed in the structure of the mark.”³⁷ Thus, as a condition of possibility of meaning, “intention ... will strive or tend in vain to actualize or fulfill itself, for it cannot, by' virtue of its very structure, ever achieve this goal.”³⁸ Thus, even a speech act communicating “genuine agreement” necessarily manifests a “re-move,”³⁹ or attenuation enabling re-contextualization and standardization.

Indeed, Justice Black offers a warning that disturbs the distinction he invokes between a fiction of consent and genuine agreement undergirding his story of contract. He asserts that, as a result of the Court’s holding, clauses such as the one being considered “will soon find their way' into the ‘boilerplate’ of everything.”⁴⁰ Thus, “boilerplate” complicates the categories on which Justice Black attempts to rely. Boilerplate figures as both the very medium of contract as well as a parasitic imitation of a paradigm of agreement—and this very paradigm of contract, Justice Black’s opinion suggests, might already itself be a fiction. Justice Black acknowledges the pervasiveness of form language as well as the potential for regularized terms—“the ‘boilerplate’ of everything”—to proliferate and echo previous iterations in a new context.

Legal scholars have noted this proliferation, arguably heightened in the electronic age.⁴¹ Non-negotiable fine-print terms are all but inescapable in American life if one uses a credit card or surfs the Internet, to name just a couple of hard-to-avoid acts. Rather than manifesting the understanding of both parties, these transaction documents—overwhelmingly consisting of non-negotiable form language—reflect the asymmetrical relation of power between an individual and a repeat-player drafting firm. Even beyond consumer contracts, in transactions in which both parties are represented by lawyers,⁴² agency and subjectivity are necessarily attenuated. Documented terms typically originate in a pre-existing template, parts of which may or may not be specifically negotiated.⁴³ As such, the dominant paradigm of salient or “dickered” terms reflecting “genuine agreement” serves as an imagined paradigm rather than an actuality of the practice of contract.

A collective view of language considered boilerplate reveals the expressive range of “form language”:⁴⁴

As I note elsewhere,⁴⁵

among other things, boilerplate has been characterized as standardized and customizable;⁴⁶ clear and obscure, depending on the reader;⁴⁷ opaque to all, but valuable as familiar;⁴⁸ context-specific,⁴⁹ and portable, thus con-text-independent.⁵⁰ So called “standard” terms signal and perform meaning in various ways, beyond, and at times in contrast with the words’ “plain meaning,”⁵¹ screening meaning, manifesting fairness or instantiating a deal.⁵²

Notwithstanding the expressive range of so-called boilerplate terms and the fact that courts treat form language as presumptively enforceable,⁵³ “dickered for” or negotiated language functions as privileged evidence of intent.⁵⁴ A bankruptcy case following the 2008 financial crisis demonstrates the way the category of “negotiated language” is itself subject to contextual refraining. By telling two stories about contract terms as negotiated or standard, the case illustrates how contract expression constitutes its context and vice versa. As such, it reveals the fiction of a particularly bounded contract landscape.

The case involved an account established by Lehman Brothers at the Bank of America (BOA) only weeks before Lehman Brothers’ 2008 market-shaking collapse. When Lehman Brothers failed, BOA seized the account, claiming a right to set off debt as per the agreement between the parties. Seeking “to determine the intention of the parties as derived from the language employed,” ⁵ the court considered whether the right to set off debt under New York law⁵⁶ had been established by the agreement. Specifically, it examined a common provision preserving “all rights ... given to the Bank by virtue of any ... law.”⁵⁷ Challenging the conventional view of this provision as a “catch all,” BOA presented the provision as a negotiated term. In this way the bank sought to underscore the provision’s role as a reflection of the parties’ considered intent to preserve the right to offset debt. Moreover, BOA offered evidence of the term’s negotiation, pointing to an evolution of exchanged drafts containing, and later removing, and thereafter reinserting this provision. Ultimately, the court rejected BOA’s framing of the deal and the provision, drawing a different contextual boundary as informed by (and informing) its view of the term. The court noted that this term was part of BOA’s—and likely other banks’—standard forms.⁵⁸ Thus, the court characterized the provision as “boilerplate” and found it did not express intent to establish an account subject to such rights.⁵⁹

The court’s acknowledgement of a stressful negotiating context and the lack of a record of explicit discussion of the issue at hand⁶⁰ underscores the attenuation of intent inherent in a contractual process. In no transaction can every possibility be anticipated and articulated. Similarly, the question of characterizing terms as negotiated or boilerplate—and the possibility the case suggests of terms operating as both standard and negotiated terms—illustrate the contingency and dynamism of contractual relations, and of the language that manifests them. As this case suggests, the designation of certain terms as standard form implicates a particular contestable contractual context. In this way, boilerplate makes salient the imagined contractual landscape.

In reality, contract serves as a necessary fiction of agreement to facilitate transaction and exchange. Courts routinely enforce so-called standard terms, both in sophisticated party transactions and in situations in which a distinctly more powerful party offers a “take-it-or-leave-it” deal to a less powerful one. Courts invoke the rhetoric of traditional contracts, and cite notice⁶¹ and formal signs of assent. In doing so, they enforce terms that implicate significant rights, such as access to a court or recourse from harm, even as these terms remain nearly impossible for only one party to assess.⁶² As a result, the process of ceding fundamental rights has become normalized as a function of agreement, perhaps as Justice Black feared.

A deconstructive lens not only highlights the fictions inherent in the prevailing notion of contract, but it also implicitly recognizes the cultural significance, the dominance, of this influential fiction. Specifically, the rhetoric of case law gestures toward meaningful agency—knowledge and choice in a level landscape with salient equitable terms. A recognition of boilerplate as the framework of contract calls attention to the imagined landscape in which contract happens. In doing so it points to the limits in reality that can compromise the goal of meaningful choice. In some contexts, courts implicitly recognize the limits of the posited landscape with an eye to fairness, as demonstrated by the bankruptcy court’s rejection of an idiosyncratic meaning of a negotiated term that impacted other creditors beyond the deal.⁶³ Yet, with respect to consumer contracts, in which transactions parties inhabit markedly asymmetrical relations of power, courts tend to point to contract as an indication of free choice and intent, situated in an imagined landscape of salient signs.

A view of contract as a weak form of boilerplate—rather than boilerplate as contract’s weak imitation—suggests a way to further, if never absolutely achieve, the goals of contract. An acknowledgement of the limits of contract, and also of the significance of the fiction as aspiration, paradoxically creates the possibility to address unjust structural challenges to meaningful agency or agreement. It opens the possibility of reframing a limitation of waivers of rights or other oppressive terms as a means of furthering (rather than hindering) the aspiration to autonomy and choice.

In reality, the absolute realization of the goals of freedom, agency, and agreement may be elusive or impossible. A view of contract through the framework of boilerplate might enable the possibility of mitigating the injustice of contract as unamiable fiction.

Notes

• 1 The Uniform Commercial Code (UCC), for example, defines contract as “the total legal obligation that results from the parties’ agreement as determined by the Uniform Commercial Code as supplemented by any other applicable laws.” Uniform Commercial CW«(2013), § 1-201(12).
• 2 See Amy Dru Stanley, From Bondage to Contract (Cambridge: Cambridge University Press, 1998).
• 3 Ibid., x. Cf. Tai Kastner, “The Persisting Ideal of Agreement in an Age of Boilerplate,” Law and Social Inquiry 35 (2010), 793-823. *'
• 4 See May v. Wilcox, 182 A.D.2d 939, 939-40 (N.Y. App. Div. 3d Dep’t 1992)
• 5 See e.g. In re Lehman Bros. Holdings Inc., 439 B.R. 811, 825 (Bankr. S.D.N.Y. 2010).
• 6 Whereas the court in ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 129 (Alaska 2014) ultimately equated “dickered-for terms” with those deemed “sufficiently important,” in Bowen p. Young, 507 S.W.2d 600, 605 (Tex. Civ. App 1974), the court granted “‘dickered’ aspects of the individual bargain,” which go “so clearly to the essence of the bargain,” the power to override words of disclaimer in a purchase agreement.
• 7 Aspects of this chapter have been developed in Tai Kastner, “Form Contract,” in Simon Stern, Maksymillian Del Mar, and Bernadette Meyler, eds, Oxford Handbook of Law and Humanities (Oxford, 2020).
• 8 Discussion of this case draws in part on Tai Kastner, “How ’Bout Them Apples?: The Power of Stories of Agreement in Consumer Contracts,” Drexel Law Review 7 (2014), 67.
• 9 Register.com, Inc. p. Verio, Inc., 356 F.3d 393 (2d Cir. 2004).
• 10 Ibid., 401 (emphasis added).
• 11 Ibid., 404.

As “D” “bites into” an apple, the analogy suggests at least one human actor, who by implication conjures a parallel individual seller in “P.”

See Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012).

See Steven J. Burton and Eric G. Andersen, “The World of a Contract,” Iowa Law Review 75 (1990), 873.

See Bowen v. Young, 605.

Fteja, 839.

Jacques Derrida. Limited Inc, Gerald Graft' ed. (Evanston: Northwestern University Press, 1988), 21.

Ibid., 7.

Ibid., 12.

Ibid., 9-10, 12.

See ibid., 18.

Carol Bast, “A Short History of Boilerplate,” Scribes Journal of Legal Writing 5 (1994— 1995), 155; Tina I. Stark, Negotiating and Drafting Contract Boilerplate (New York: ALM Publishing, 2003), 9.

As Derrida explains, “writing can and must be able to function in the radical absence of the sender, the receiver and the context of production.” Derrida, Limited Inc, 8.

See J. Hillis Miller, Speech Acts in Literature (Stanford: Stanford University Press, 2001), 67-68, 83 (discussing Derrida’s Limited Inc).

Bast, “Short History,” 155.

National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964).

Ibid., 313.

Ibid., 314.

The majority opinion penned by Justice Potter Stewart quotes the relevant paragraph of the lease to discuss its purpose and the parties’ intent, thereby engaging the language of the document as a reflection of the original will of the parties. Ibid., 316. He underscores the significance of the parties’ notification, and thus the document’s role as an indication of will and reflection of agency by noting the proximity of the farmers’ signatures to the relevant provision. Ibid., 313. Justice William J. Brennan’s dissenting opinion similarly taps into this vision of contract as a reflection of meaningful consent, seeking evidence of “knowin[g] and intelligent] consent.” Ibid., 334.

Ibid., 319.

Justice Black argued that the Court ought to defer to New York State law on the question of agency, and if not, the standard it formulates should reject a “sham” appointment, as he views the one in this case. Ibid., 323.

Ibid., 326.

Ibid.

Ibid., 332.

Ibid.

Ibid., 333. For Justice Black, this “strains” and “exhausts credulity.” Ibid., 332-3. Derrida, Limited Inc, 8, 48.

Ibid., 56.

Ibid.

National Equipment Rental, 328.

See Omri Ben-Shahar, “Preface: Or: A Boilerplate Introduction,” in Boilerplate: The Foundation of Market Contracts, ed. O. Ben-Shahar (Cambridge: Cambridge University Press), ix-xiv; Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton: Princeton University Press, 2012); Cheryl B. Preston and Eli W. McCann, “Unwrapping Shrinkwraps, Clickwraps, and

Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse,” Brigham Young University Journal of Public Law 26, No. 1 (2012), 1-35; Nancy S. Kim, “Situational Duress and the Aberrance of Electronic Contracts,” Chicago-Kent Law Review 89, No. 1 (2014), 265, 274-5.

The presence of lawyers and the nature of a corporate entity underscore the attenuation of subjectivity.

Russell A. Hakes, “Focusing on the Realities of the Contracting Process—An Essential Step to Achieve Justice in Contract Enforcement,” Delaware Law Review 12 (2011), 103.

I discuss the range of significations of boilerplate in Tai Kastner, “Form Contract,” in Oxford Handbook of Law and Humanities (forthcoming); Tai Kastner, “The Persisting Ideal of Agreement in an Age of Boilerplate,” Law and Social Inquiry 35 (2010), 804-6 from which these findings and citations derive.

See Tai Kastner, “The Persisting Ideal of Agreement in an Age of Boilerplate,” Law and Social Inquiry 35 (2010), 804-6.

See Margaret Jane Radin, “Boilerplate Today: The Rise of Modularity and the Waning of Consent,” in Boilerplate: The Foundation of Market Contracts, 190.

See Michelle E. Boardman, “Contra Proferentem: The Allure of Ambiguous Boilerplate,” in Boilerplate: The Foundation of Market Contracts, 176.

See Stephen J. Choi and G. Mitu Gulati, "Contract as Statute? Michigan Law Review 104, No. 5 (2006), 1152 n.83, 1160; Marcel Kahan and Michael Klausner, “Standardization and Innovation in Corporate Contracting (or ‘The Economics of Boilerplate’),” Virginia Law Review S3 (1997), 721 n.16.

Todd D. Rakoff, “The Law and Sociology of Boilerplate,” in Boilerplate: The Foundation of Market Contracts, 200-10.

See Henry E. Smith, “Modularity in Contracts: Boilerplate and Information Flow,” in Boilerplate: The Foundation of Market Contracts, 164.

See e.g. Mark C. Suchman, “The Contract as Social Artifact,” Law and Society Review 37, No. 1 (2003), 111-2; Robert B. Ahdieh, “The Strategy of Boilerplate,” Michigan Law Review 104, No. 5 (2006), 1033-73; David Gilo and Ariel Porat, “The Unconventional Uses of Transaction Costs,” Michigan Law Review 104, No. 5 (2006), 983-1030; Anna Gelpern and Mitu Gulati, “Public Symbol in Private Contract: A Case Study,” Washington University Law Quarterly 84 (2006), 1627-715.

Gilo and Porat, “Unconventional Uses,” 983-1030.

Graham v. Scissor-Tail, 623 P.2d 165 (Cal. 1981).

In In re Bremen p. Zapata, 407 U.S. 1, 14 (1972), for example, the Supreme Court enforced a forum-selection provision in a transaction between sophisticated actors precisely because it was “unrealistic” to imagine that the term did not “figure] | prominently in [the parties’] calculations” in their negotiations. Moreover, the opinion contrasts the negotiated term with “boilerplate,” stating “this was not simply a form contract with boilerplate language that [the party] had no power to alter.” Ibid., 14 n.14.

In re Lehman Bros. Holdings Inc., 825.

By claiming its right to set off, BOA sought to establish a claim to these funds superior to those of other Lehman creditors.

Ibid., 818.

Ibid., 827 n.18.

Ibid., 827-8.

Ibid., 815-6.

Such notice may be “constructive,” an acknowledgement that it need not be experienced. See e.g. Major p. McCallister, 302 S.W.3d 227, 229 (Mo. Ct. App. 2009).

• 62 Tess Wilkinson-Ryan aptly characterizes fine-print disclosures as “functionally unreadable (or at least indigestible) for consumers with bounded cognitive capacity —i.e., everyone.” Tess Wilkinson-Ryan, “A Psychological Account of Consent to Fine Print,” Iowa Law Review 99, No. 4 (2014), 1749.
• 63 In re Lehman Bros. Holdings Inc.