Nov 22 2009

Standard Forms Often Need Reconsideration

In light of the many changes in privacy, intellectual property, and e-commercial law that have occurred in the past decade, standard forms and model agreements that were first brought into existence only a relatively short time ago should be re-examined to make them consistent not only with the demands placed by new law, but also with the new language and approaches that have become central to modern practice.

            I first recognized this issue when long ago I was doing bankruptcy and commercial law.  In 1980 or so, Congress altered bankruptcy law to, among many other things, render invalid any clause in a contract or lease that purports to terminate the agreement if a party (typically, the buyer, lessee or licensee) files for bankruptcy relief.  Twenty years after this legislation, most standard form contracts and standard leases still contained a term that purports to end the contract in the event that bankruptcy is filed.  Many standard forms still contain this clause, almost thirty years after the law changed.

           There are many illustrations of this failure to adjust terms to reflect mandatory law in a standard form.  We can see it in standard form disclaimers of warranty in local transactions in states that ban broad disclaimers in the relevant transactions.  It also occurs in drafts of guaranty and indemnity provisions, which are seldom updated.

            But the most important context in which this problem occurs today involves adjusting forms to reflect modern (and ubiquitous) provisions of privacy and e-commerce laws.  The issues here are addressed in an important article by Holly Towle, a partner at KL & Gates and a leading expert in both privacy and e-commercial law. 

           Her article and the general issue of keeping forms updated to reflect modern law and terminology need to be addressed.

           

Written By:James C. Roberts III On January 12, 2010 12:07 PM

Sorry I missed this one until now but someone needs to dig more deeply into this point--what needs to be addressed (and removed) and what needs to be added to the forms. Can you direct me (us) to such sources?

Written By:anonymous On December 9, 2010 11:25 PM

That was very informative and well written. I look forward for further posts from you. Recently I happened to read an article on Patent Licensing which I felt quite interesting and informative. I would like to bring your kind attention to that post. Below mentioned is an excerpt of the mentioned article.
” A license is an authorization given by the patent holder to exercise the exclusive rights granted by the patent. It permits the person acquiring the license to practice the patented invention in the manner allowed under the license. Therefore, a license agreement must clearly specify the terms and conditions for exercising rights with respect to the patented invention. In order to be valid, a patent license agreement must be……”read more at http://www.sinapseblog.com/2010/12/drafting-valid-patent-licenses.html

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