9. Limitations and exclusions of liability

After dealing with the question of who does what, and who pays what, most contracts make an attempt to limit liability for breach of those obligations. The parties may try to exclude their liability completely for breach of some or all of a contract's terms (an attempt likely to be unsuccessful), or to limit their liability to a particular sum.

10. Subsidiary obligations

Obligations that are incidental to the primary obligations to perform and to pay can be conveniently referred to as subsidiary obligations. Subsidiary obligations might relate to such topics as intellectual property or confidentiality. However, it depends on the nature of the obligation in the context of the agreement. An obligation with regard to confidentiality would obviously be a primary performance obligation in a confidentiality agreement, but might be relegated to the boilerplate section in a simple commercial agreement.

11. Boilerplate

The boilerplate clauses are clauses (usually standard clauses) which are inserted into most types of agreement towards the end of the document. They deal with many matters including non-assignment of the parties' rights, force majeure, choice of law and jurisdiction, entire agreement, time of the essence and severance.

The designation of a clause as a boilerplate clause is arbitrary. The less a clause is likely to be changed for a particular situation, the more it is likely to be considered as a boilerplate clause (not that the expression has any particular magic of its own). Probably the main point to make here is that boilerplate clauses should not be added to a draft without some thought. For example, termination clauses are often in a standard boilerplate format, but might need amendments to meet a particular situation.

12. Schedules, appendices and other attachments

Schedules and other attachments to the main body of a contract are usually used to avoid breaking the flow of the contract with lots of detailed information. So, for example, in a share purchase agreement there will usually be a separate schedule containing detailed warranties. The warranties are of course legally operative parts of the agreement.

Schedules may appear in between the operative clauses and the execution clause or, following US style, at the very end of a document.

One of the main aims should always be to make clear whether it is intended that the attachment forms part of the binding contract, or not. If the document does form part of the contract, the contents of an attachment including the label which is applied to it would be subject to the ordinary rules of interpretation, such as the "rule" that words should be given their "natural and ordinary meaning".

13. Execution

The formalities required for execution depend on the identity of the parties signing and the type of contract being signed. Usually a simple contract is signed by the individual party to it or a director or another authorised agent on behalf of the corporation party to the contract. A deed, on the other hand, requires an express statement that the document is being executed as a deed and additionally requires a signature of a witness to the individual party’s signature or the director’s signature acting on behalf of the company. A deed is a written document which is executed with the necessary formality (that is, more than a simple signature), and by which an interest, right or property passes or is confirmed, or an obligation binding on some person is created or confirmed. Deeds are generally enforceable despite any lack of consideration. The limitation period for actions brought under a deed is generally 12 years, although it is six years for claims for arrears of rent and arrears of interest under a mortgage.

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