Beware The Boilerplate: Issue Four

Multiple Contracts with Similar (But Not Identical) Clauses

In most commercial loan transactions, there will be multiple documents—for example, a note, a deed of trust and a guaranty. Many times, each of these documents contains provisions intended to have a uniform effect. These are often the boilerplate clauses copied and pasted from one deal to another, but they have critical importance in the context of litigation. They contain, for example, provisions about venue, choice-of-law, waiver of jury trial and merger/integration. As a general rule, contracts executed contemporaneously will be construed together. Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984).

Creating ambiguity from three unambiguous documents.