Let me start by saying I totally understand the intense desire of all of us in the contracts community to find and use model contract provisions. I feel it too. We want someone to give us THE language, THE provision that we can plug into our deal and voila! That part of the contract is taken care of. After all, we got the language from an expert or a trusted source. It’s got to be better than we can draft.
The problem I see is not necessarily the language itself. Usually these model provisions are well-written and address critical concepts.
The problem is how we subconsciously think about the language once we’ve added it. I’ve noticed it in myself. I see it in others.
When we insert that model clause, we treat it like checking a box. We don’t push back and stress-test the language like we do when we draft it ourselves or we piece it together from past deals or different sources. Many of us have a tendency to set that language on a higher pedestal because someone shared it as a model version.
We shouldn’t do that.
Every model provision was written for a specific context and with assumptions about the objectives, strategy, and risks of the deal. If your deal has a different context or assumptions, the model provision's language may not protect you.
The language looks polished and authoritative. It has been used before. So we adopt it, often without knowing what deal it was written for, what risks it was designed to address, what leverage or business objectives the parties had.
Someone decided how to allocate liability if something goes wrong. Someone decided where to shift responsibility for the obligations. Someone decided where to give up potential rights. If your deal happens to line up with the model language drafter’s strategy, great. It may work just fine. But if it doesn’t, do you understand how to change the language so that it does? Do you know how to edit the provision to reflect the optimal approach for your context, priorities, and circumstances? Even if you do know, how likely are you to dig in and push yourself to stress-test the words and approach. After all, it is model language. Do you know better than that expert?
The truth is you do. Because that expert does not have the benefit of what you know about the contract in front of you. That expert doesn’t know who the parties are, what they are trying to do with this transaction, what kind of leverage they have, what are their respective strengths and weaknesses, and so many other things that are unique to the deal.
To be clear, I’m not advocating to abandon model language. These provisions are an important tool for all us to use in improving our contract drafting. I regularly look at the language shared by my favorite contract guru David Tollen and standard contract templates from Common Paper and Bonterms.
We can learn from model clauses. But they are not the end game. They are not the be-all of drafting. To me, standard model provisions from different experts and trusted sources rank below a great checklist and above a generic blog drafting advice post (like this one). It gives you some ideas about what the provision sometimes says and how they are sometimes written. That may help you trigger some analysis and thinking.
The critical step you have to take is to keep pushing your comprehension. Try to figure out the specific counterparties, objectives for the deal, risks being allocated, and overall contracting strategy. If you are newer to contracts, bring that model clause to your mentor or manager. Tear it apart together. Work through what it does and doesn’t do.
A model provision is a starting point, not an answer. Your deal's context, assumptions, and risks are what determine whether it works for you.
