Pathfinder 1E This is why pathfinder has been successful.

[S'mon]

I'm fine with regulations that offer a level playing field in consumer interactions - requirements for plain language in a contract, contra preferentum...

Agh, you had me worried I'd spelt it wrong in my lecture slide last Friday!

But no, it's contra proferentem: Contra proferentem - Wikipedia, the free encyclopedia

 

[S'mon]

I'm not a lawyer, but I find this exchange fascinating. Help educate me here: Is the idea that if a deal were clearly disadvantageous to me (i.e., "unfair"), then I would not have knowingly entered into it. But since I entered into this unfair, disadvantageous arrangement, I must not have had fully knowledge of what I was doing, so therefore couldn't be said to have entered into it freely, since I didn't know what I was entering into?

UTCCR "unfairness" requires - (1) standard form contract - 'not individually negotiated' & (2) severe imbalance in rights and obligations to the detriment of the consumer. The term is then unenforceable against the consumer. Price paid is excluded, and you can still enter into an enforceable contract that is clearly disadvantageous to you, eg me getting fooled by amazon.co.uk into paying above RRP for the Neverwinter Campaign Setting pre-release.

 

[S'mon]

A good introduction to all this is Lord Denning's decision in George Mitchell (Chesterhall) Ltd. v Finney Lock Seeds Ltd. (George Mitchell (Chesterhall) Ltd. v Finney Lock Seeds Ltd. [1982] EWCA Civ 5 (29 September 1982) - look for The heyday of Freedom of Contract) - Depending on your point of view he was either a power mad meddler or the best jurist of the 20th century. He had a clear view of how he wanted the world to work and used his position to modify the common law to enact that vision.

Thornton v Shoe Lane Parking Ltd (Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 (18 December 1970)) is another classic Lord Denning protecting the consumer case.

Great cases - I've spent a couple hours on Thornton v Shoe Lane with my International Commercial Law LLM class over the past two weeks. I've used it as a good intro to understanding English case precedent, as Denning discusses eg Parker vs Southeastern Railway Parker v South Eastern Railway Company - Wikipedia, the free encyclopedia - as well as both offer/acceptance and incorpration of terms. And it stands up pretty well IMO, unlike a lot of Denning's wilder flights.

I then used Interfoto Picture Library on incorporation of terms, plus discussed how it referred back to Thornton. It seemed to really help the non-Anglosphere LLM students get to grips with the English system of case precedents.

George Mitchell v Finney Lock I like as an example of the contrasting English common law vs UCTA approaches, I also like the public policy discussion on reasonableness.

 

[Yora]

What specifica case of a potentially unfair contract are you talking about right now? This thread is a bit cluttered, and I didn't find to what this question is a reply.

 

[S'mon]

What specifica case of a potentially unfair contract are you talking about right now? This thread is a bit cluttered, and I didn't find to what this question is a reply.

No specific case AIR, just lawyerly shooting the breeze.

 

[czak]

Yeah, it sort of evolved out of the OGL / OSRIC licensing discussion. But I can swing the conversation back round that way by looking at the GSL - there are clauses in the GSL specifically designed to prevent another OSRIC jurisdiction issue and to circumvent the common law doctrines around contracts we've been discussing.

For example:

[sblock]

18. Choice of Law; Jurisdiction. This License will be governed by the laws of the State of Washington, USA, without reference to its choice of law rules. Licensee irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located at King County, Washington with respect to any claim or suit brought by Licensee arising out of or related to this License, and Licensee agrees not to commence or prosecute any such claim or suit other than in the aforementioned courts.

[/sblock]

Clause 18 forces a venue and a choice of law on licensees - which gets around the common law rules / conflict rules of what law governs a contract (typically where the contract is signed). This prevents the strategy that the publisher of OSRIC used - publish in a location that has a more favourable costs regime and a more familiar law (cheaper to get advice in your home jurisdiction than try to hire a lawyer in Washington to advise you).



[sblock]

9.4 Remedies. Licensee recognizes and acknowledges that its breach of any of the covenants, agreements or undertakings hereunder with respect to use of the Licensed Materials, including without limitation trademark use requirements or quality standards, will cause Wizards irreparable damage which cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement of Wizards’ rights in Wizards Intellectual Property, thereby entitling Wizards to equitable remedies, costs and reasonable attorneys’ fees.

[/sblock]
9.4 Allows WOTC to get costs, and opens up equitable remedies - something not typically allowed for a contracts case - the usual remedy for breaching a contract is just a damages (money) award. Normally breaching a contract isn't seen as immoral - its a rational economic decision and you just pay money to compensate the otherside. This might modify the old sword vs shield thing with equity as well, but its been a while since I've looked at equitable remedies.

[sblock]

10.4 Injunctive Relief. Licensee acknowledges and agrees that noncompliance with the terms of this License may cause irreparable injury to Wizards for which Wizards will not have an adequate remedy
at law, and that Wizards will therefore be entitled to apply to a court for extraordinary relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, without necessity of posting bond or security.....Licensee will be responsible for all legal costs, including Wizards’ attorneys’ fees, associated with any action required by Wizards to enforce the terms of this License.

[/sblock]10.4 Lets Wizard's go for injunctive relief - a powerful equitable remedy that allows you to bar someone from taking an action (or force them to take an action) before a case has been decided. For example, greenpeace might run to court try to get an injunction to prevent the logging of an old growth forest before a trial actually starts or is brought.

Normally you have to get over a pretty high hurdle (irreparable harm) and post a sizable bond (which gets paid out if you lose) in order to get an injunction, things like preventing someone from pulling the plug on a loved one, or destroying a heritage building or hunting a whale - you probably wouldn't be able to get one preventing the sale of an rpg book without this clause.

And you have to pay Wizard's legal fees. This again discourages pushing the edges of the license - you are going to have to pay their legal fees if you want to dispute or disagree about the terms of the license. Again not typical for an american jurisdiction, where you usually don't pay the other sides fees.


[sblock]

16. No Waiver; Construction. Failure by Wizards to enforce any provision of this License will not be deemed a waiver of future enforcement of that or any other provision. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this License.

[/sblock]16 Gets wizards out of the doctrine of contra proferentem that I mispelled earlier. Normally in a standard form contract like this any ambiguity is resolved in favour of the party who didn't draft the contract (or against wizards) - this clause gets around that.


You can compared the GSL to Paizo's compatability license (http://paizo.com/pathfinderRPG/compatibility) and see some similarities (choice of venue/law clause) and some differences (construction, fees, equitable remedies etc..) Or the OGL which doesn't even have a choice of law clause. The first version of the GSL had some other fun clauses iirc.

Comparing all the licenses you can see that Paizo really bought into the whole ecosystem / network philosophy and so have an incentive to provide a more licensee favourable license but take the risk of not being able to automagically get an injunction or fees for example.

Further to that point, they continue to make the license more valuable by consistantly OGLing their new rules - allowing 3pp to produce support material or adventures for new releases. I believe WoTC has been a bit slow adding things to the 4th ed SRD so new 3PP GSL adventures can't use the new monsters / classes etc...

 

[S'mon]

I wouldn't touch the GSL with a ten foot pole - and neither have many publishers - but I wanted to mention this clause:

>>16..... Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this License.<<

Uhm, it's not the other party to the contract who gets to decide what the contract means, it's the court. The court is a third party to your contract, and you can't bind third parties to the contract - an amazingly common error, and one I often chastise students for. So you can't get out of contra proferentem by saying "Doesn't apply to us!".

Nice try, though. LOL.

 

[Yora]

In German law, there are laws that are mandatory, and laws that are in place if the negotiating parties have not agreed on handling the issue in another way.

If something would fall in the second group, #16 would be redundant and there would be no need to mention it.
If it falls in the first group it can never be changed by an overriding contract agreement, which means #16 is void. Even if someone signed that contract, he would not need to follow it, because as the courts are considered, that part of the contract does not exist.

And I think you'll have something very similar in common law as well. Which begs the question why it was included in the first way. Either the lawyers who set up the GSL didn't know what they were doing, or the judges may even assume that it was included to trick the other party in believing that it is legally binding. And when the judge thinks you set up a contract with the intent to cheat, you might still lose a case even though everything else is legally flawless.

 

[czak]

I wouldn't touch the GSL with a ten foot pole - and neither have many publishers - but I wanted to mention this clause:

>>16..... Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this License.<<

Uhm, it's not the other party to the contract who gets to decide what the contract means, it's the court. The court is a third party to your contract, and you can't bind third parties to the contract - an amazingly common error, and one I often chastise students for. So you can't get out of contra proferentem by saying "Doesn't apply to us!".

Nice try, though. LOL.

That's a very good point.

A quick google search though shows that this appears to be a standard clause in the US. I wonder if this has been litigated.

Could it possibly estop a party from raising the issue in pleadings?

 

[S'mon]

That's a very good point.

A quick google search though shows that this appears to be a standard clause in the US. I wonder if this has been litigated.

Could it possibly estop a party from raising the issue in pleadings?

On it being a standard clause - maybe the courts don't realise that contracts can't bind third parties. More likely, it's purely intimidatory.

Estoppel - I don't know exactly how it would work in the US, but for English law, given the 'clean hands rule' for estoppel and that the clause itself is so skeevy, I don't think it would do much here other than annoy the judge: "They're acting in bad faith by saying this contract can't mean whatever we, the drafters, want it to mean!" - I'm not seeing it.