Pathfinder 1E This is why pathfinder has been successful.

[S'mon]

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.

Well, Germany is a strong 'Contract Regulation' jurisdiction - much more interventionist than the UK, never mind the USA - with an emphasis on the need for good faith in business dealings. In the common law jurisdictions it's unlikely you'll lose a contract case *just* because you're being a big old meanie. Though it doesn't help, and I'm often surprised how often US lawyers (well, New York lawyers, mostly) are willing to act hyper-aggressive, in a way that might not harm their client's legal position but certainly does their public image no favours.

 

[Yora]

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?

I am not a lawyer and only studied contract law for three semesters while studying economics. But I think there is in fact something similar in Germany as well. Something that in 99% of all cases is completely redundant and void, but there is one special situation where it does make a difference.
I think not a part of a contract, but a claim to make at the beginning of a court case. Since there was one prominent case where a huge contract would have been held valid if the defendants lawyer had made the claim in his written statement before the first day in court, all layers are heavily pressured by their employers to alway include it, now matter how rediculous it may seem to claim it. Because that one time, it turned out weeks later that it would have made all the difference and cost someone a massive amount of money. Because of that, lawyers always include it.

 

[czak]

Hmm if parties can derogate from the common law rules around choice of venue or choice of law, why can't they also do the same thing with another common law doctrine?

I can draft a contract there that sets the venue as BC but the choice of law to be UK or US or French if I like - I've effectively bound the court to interpret the contract a certain way. Why shouldn't parties be free to say instead, we don't want ambuguities to be resolved against the drafter or ejusdem generis to apply. Aren't interpretation clauses of one form or another common in contracts and don't they alter, or displace the usual rules of construction?

 

[Remus Lupin]

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.

Man, that's hilarious. I'd be amazed to find out that any court would ever take that clause seriously, or even that WOTC tried to defend themselves on the basis of it. But again, I'm not a lawyer, so I'm often amazed by what happens in courtrooms. Law is a strange and esoteric discipline. Much like my own!

 

[S'mon]

Hmm if parties can derogate from the common law rules around choice of venue or choice of law, why can't they also do the same thing with another common law doctrine?

I can draft a contract there that sets the venue as BC but the choice of law to be UK or US or French if I like - I've effectively bound the court to interpret the contract a certain way. Why shouldn't parties be free to say instead, we don't want ambuguities to be resolved against the drafter or ejusdem generis to apply. Aren't interpretation clauses of one form or another common in contracts and don't they alter, or displace the usual rules of construction?

Where the court is seeking to give effect to the intent of the parties, you can alter many of the normally implied terms (eg on choice of jurisdiction) by agreement. Contra Proferentem is not an implied term at all though -there's no idea that the parties are impliedly agreeing to have the terms interpreted against the drafter! It's court policy.

"Remus Lupin and S'mon agree that Czak shall give S'mon £1,000". This contract term between Remus and S'mon has no effect on the third party Czak, it cannot bind him to give S'mon anything.

 

[czak]

So, while I was at school today I popped into the law library and grabbed a copy of Epstien's Drafting Licensing Agreements (Drafting License Agreements, Fourth Edition - 0735533792 - 9780735533790 - Kluwer Law International) hoping it would shed some light on why the clause is included and whether it has been the subject of litigation.

It was not helpful. No history, no explanaition, no citations. It just included a clause to be inserted if one of the parties was unsophisticated:

[sblock]

Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has received advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. Further, each party and their counsel have cooperated in the drafting and preparation of this Agreement. It shall be deemed their joint work product and may not be construed against any party be reason of its preparation or word processing.

[/sblock]

Very different wording to try and get the same effect.

 

[pemerton]

Up north here the test we use is:

“Where a claim is made that a bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to the ignorance, need or distress of the weaker, which would leave him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When this has been shown a presumption of fraud is raised, and the stronger must show, in order to preserve his bargain, that it was fair and reasonable.”

It's almost never deployed. Calling someone a fraudster and then failing to prove it tends to result in special costs being awarded (pay the opposition's legal fees).

Whereas in Australia unconscientious dealing is very commonly pleaded - far more than undue influence, for example. And the sorts of situations, like spousal guarantees, that the English courts try and deal with via undue influence - O'Brian, Eteridge and the like - in Australia are normally dealt with either via unconscientious dealing or via a further equitable docrtine that I think is unique to us (the English courts don't accept it), known as the rule in Yerkey v Jones or the "special wive's equity".

We have penalty costs for failed pleadings of fraud, but I'm pretty confident that they don't apply to unconscientious dealing (I have never practised, and don't know the rules of procedure very well, but the ubiquity of unconscientious dealing as a pleading makes me think that penalty costs don't apply).

>>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.<<

<snip>

So you can't get out of contra proferentem by saying "Doesn't apply to us!".

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.

Hmm if parties can derogate from the common law rules around choice of venue or choice of law, why can't they also do the same thing with another common law doctrine?

<snip>

Aren't interpretation clauses of one form or another common in contracts and don't they alter, or displace the usual rules of construction?

That was my thought too - isn't is functionally analogous to a choice-of-law clause, with the parties to the contract agreeing on the rules of construction that are to govern it.

Whether that's permissible in any given jurisdiction is another matter, but I don't see it as inherently absurd.

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.

Australian law, and English law also (given the Australian law was derived from it) has similar elements - default provisions that are read in by a statute, but can be excluded by the will of the parties.

But the contra proferentum rule is a bit different, because it is a common law (ie judge-made) rule of construction, not a default provision of the contract. But an attempt to exclude it is quite different from (futilely) trying to exclude a provision that some statutory rule makes mandatory (like, say, the duty to depost the bond from a residential renter into a special account). It's an attempt by the parties to specify the law by which the contract will be interpreted.

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.

<snip>

Lets Wizard's go for injunctive relief

Whereas this stuff strikes me as strange. The question of WotC's loss on any given occaion of breach seems to me a matter of fact, and the suitability of particular remedies a matter for the court. But I'm not really a contract lawyer, and certainly not a US one - maybe this stuff is seen as somewhat analogous to a liquidated damages clause.

 

[S'mon]

But the contra proferentum rule is a bit different, because it is a common law (ie judge-made) rule of construction, not a default provision of the contract. But an attempt to exclude it is quite different from (futilely) trying to exclude a provision that some statutory rule makes mandatory (like, say, the duty to depost the bond from a residential renter into a special account). It's an attempt by the parties to specify the law by which the contract will be interpreted.

I don't see how attempting to exclude a standard common-law rule of construction not based on the agreement of the parties is much different from trying to exclude a mandatory statutory provision.

Estoppel was raised earlier - I can just about see a situation arising where:
(a) WoTC is the defendant/respondent and
(b) WoTC has somehow acted in reliance on the agreement
Where the clause might help to shield WotC from liability. But that is
(a) Very speculative and
(b) Unlikely - it's far more likely that WoTC would sue someone else under the GSL, than that they be sued.

Anyway, were I a publisher I would not go near the GSL. It's hideously lopsided, and I get the impression it was grudgingly drafted as the result of an in-house compromise, by people who didn't really want it to be used at all.
If I wanted to publish material for 4e D&D in the UK I would either use:

(1) Normal TM & Copyright law, so that I could put "Can be used with the 4th edition 'Dungeons and Dragons' game, published by WotC. Trade Marks used without permission" on the cover

or else

(2) The OGL, so that while I could not use WoTC TMs at all, I could use the WoTC IP in the SRD.

For most US publishers who don't want to have to risk defending a legal action I think the OGL route is safest.