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Sui Generis: Draft Like You Mean It
It's a fair statement and assessment of the legal profession that precedent is critical to sound practice. While I don't disagree, I think there are nuances that should inform the use of precedent and document preparation/revision/negotiation, generally.
As we know, forms of leases have long legacies such that their clauses are quite literally boilerplate. Forged in fire. I think that this automatic acceptance of various concepts in the face of jurisprudential modernity and evolving legal approaches is dangerous. Made more so by the fact that such face-value accepted clauses go unnoticed vis-à-vis other language in the agreement which may say the opposite or very incompatible things — they are sold in negotiations or self/client consolation under the headings of "this is always how we've done it" or "this is standard language." Well, again, as we all know everything was sui generis until it became precedent. The evolutionary exploits of a commercial lease aren't done yet, nor should they be.
This article cites examples of various clauses in leases that have become rote despite their sometimes irreconcilability with competing or conflicting clauses elsewhere in the document.
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