March 2006 Vol. 104 No. 5 THE REVIEW

Contra Proferentem: The Allure of Ambiguous Boilerplate

Michelle E. Boardman

Bad boilerplate can shake one’s faith in evolution; not only does it not die away, it multiplies. The puzzle is why. Much of boilerplate is ambiguous or incomprehensible. This alienates consumers and is increasingly punished by courts construing the language against the drafter. There must, therefore, be some hidden allure to ambiguous boilerplate. The popular theory is trickery: drafters lure consumers in with promising language that comes to nothing in court. But this trick would require consumers to do three things they do not do—read the language, understand it, and take comfort in it.

There is a hidden allure to ambiguous boilerplate, but the trick lies in the courts, not the consumer. The trick is a private conversation between drafters and courts; excused from the table is the consumer, who could have no fair duty to understand, and so has no duty to read. With the consumer out of the room, edits and additions to boilerplate are targeted to courts alone. The new language does not need to make sense to a layman. It does not even need to make sense standing alone; a judge will read the language in the context of precedent, with the aid of briefing.

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