Input Re WI-71 isLegallyBinding

["Sally St. Amand" <sallystamand@yahoo.com>]

Hi all

I recently asked John Messing, an active member of the LegalXML section, for an opinion on the issues we have been discussing in conjunction with how to support
international eCommerce and enforceability, and specifically the isLegallyBinding
attribute.

 

I did my best to summarize our discussions, which Monica has well documented in her emails of July 28 and July 14. 

 

John was kind enough to provide his opinion and was supportive of soliciting input from other members of the LegalXML section. To that end I have copied them and would ask for their input. John's response is below. We appreciate the assistance on an issue I believe is important to both groups albeit from different perspectives.

 

Sally

John Messing <jmessing@law-on-line.com> wrote:

Thank you for the opportunity of reviewing this question. The following
is my own opinion, with which others may agree or disagree.

> Most of our TC's discussion on this issue has been whether isLegallyBinding
> inferred test or production capabilities, the purpose of the
> attribute (and potential impact on technology), whether the name should be changed to something else, eg isLegallyEnforceable or isLegallyIntent,and whether we should change it from an attribute to an element on the assumption that there is additional complexity that will need to be addressed in future versions.

1. Inference of special test or production capabilities.

I do not believe this parameter requires any special capabilities apart
from that given to any other element or attribute that is tested to
determine if the proposed standard works satisfactorily in an
interoperability environment (e.g., whether the XML is valid,
well-formed, and capable of being written and read satisfactorily by
applications).

2. Purpose and potential impact.

I think the purpose of the parameter is to document along with other
pieces of information whether the party who invokes the parameter
intends to be bound legally to a representation or promise so as to
induce action in reliance by another party, who may later need to seek
legal
enforcement. Legal and moral commitments apply to
people and through them to the entities on whose behalf they act.
To my way of thinking they involve moral criteria, which differ from
real world and virtual criteria as much as the latter may differ from
each other. One bind's human identities to cryptographic keys through
certificates based upon procedures by which humans introduce other
humans to a computing network for purposes of registration, as a
matter of techology. Similarly, one binds humans and the entities for
whom they act to promises and statements upon which others rely,
through the mechanism of construed legal intent. The
IsLegallyBinding parameter can help to document whether such
intent existed at the time the transaction was concluded.

Probably the existence of the IsLegallyBinding parameter will not be
determinative but will be one important piece of information to be
assessed by a decision-maker overall in trying to determine the intent
of a promisor in the context of a legal dispute. Other information at
the application level about how the parameter is triggered for
inclusion will probably be needed as well, including the GUI that the
user experienced, to allow drawing a conclusion that what the user
activated
was what the user intended, and what was intended was correctly
recorded and transmitted by the application. It is not terribly
different from constructing a secure audit trail, though the purposes
and conclusions may be significantly different.

3. Changes

I do not think its name should be changed so long as the definition is
clear. Nor do I necessarily think that it needs to be an attribute,
although obviously if there are some parameters in a transaction that
are intended as legally binding and others that are not, then attribute
status may be prefereable to distinguish between them. This probably can
best be determined in the context of use cases, and I cannot tell as a
general principle which is better.

I hope this is useful. Please forgive the disclaimer that follows, but
my training tells me it is prudent under the circumstances. This email
and its contents are not legal advice, there is no right to rely upon
the statements for a specific legal purpose, no attorney client
relationship is created, and no electronic signature should be inferred
or implied.

Best regards.