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Contract forms represent codified experience, which might or might not be useful

Some commentators have said that contracts are like computer software [1]. One way in which the analogy is accurate is that contract forms represent the “codified experience” [2] of others. And like any experience, some of the lessons learned are likely to be more valuable than others — with some lessons not being applicable and possibly even being counterproductive. Which of course is just another way of reiterating that drafters shouldn’t blindly reuse contract forms.

[1] See, e.g., Steve Smith, 9 Ways Contract Lawyers are Like Software Developers (2010). The analogy goes only so far: unlike the people who must carry out the instructions in a contract, people, computers don’t get buyer’s remorse or otherwise have to be persuaded to carry out their instructions.

[2] See, e.g., Peter Eeles & Peter Cripps, The Process of Software Architecting ch. 2 (Addison-Wesley Professional 1st ed. 2009), excerpt at Google Books,

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