International Construction Law Review
A–Z Guide to Boilerplate Commercial Clauses. Second Edition. By Mark Anderson and Victor Warner. Tottel Publishing, 2006. ISBN 13:978–1–84592–093–7; ISBN 10:1–84592–093–7. 510 pp. including tables and index. Hardback. £110.
HUMPHREY LLOYD
I had not come across this book before. It is very useful and I hope that it will reach a wider audience. Apparently it began life as part of a well-known English publication The Encyclopaedia of Forms and Precedents
. The authors, both experienced solicitors, built upon their work for that publication in order to produce this book, the first edition of which appeared in 2001.
It adopts a somewhat unusual format in that following the title—”A–Z”—it is not arranged with the usual numbered chapters, but rather by reference to headings, i.e. it starts with “acknowledgements” and ends with “warranties”. (Some letters of the alphabet are therefore not covered.) This approach has both advantages and disadvantages. The advantages are that someone seeking advice would almost certainly find it under one or other of the headings used. The disadvantage is that one might have to search a little in order to find exactly what one was looking for. The work’s strength lies in two main features. First, from the point of view of English law (for that is its base) it provides guidance by reference to numerous cases (some of which might well have been overlooked) for the purposes of assisting someone to draft a contract effectively. Secondly, it provides “worked examples”, i.e. precedents, which are intended to represent the practice which the authors derive from their own experience and from the decided cases.
There are some areas which might perhaps be amplified. I looked for the heading “Four Corners” and found its subject-matter under “Entire and Final Agreement”. It is by no means uncommon in construction contracts to find a provision which ought not merely to define the totality of the documents which are to constitute the contract (in itself highly desirable especially where documents refer to other “off stage” documents) but which also purports to declare that what is to be read constitutes the total agreement between the parties. Whilst this course seems attractive it has its dangers. Does it exclude prior representations or agreements which may be regarded as collateral to the contract in question? How far does it exclude the interpretation of the provisions that are to be found in the contract? It may challenge an arbitral tribunal or court to arrive at a conclusion as a matter of interpretation in a somewhat strained manner when the more normal and usual approach would be to infer or imply the parties’
[2007
The International Construction Law Review
244