Liability and Adhession
I've been lurking for well over a year, and this topic has compelled me to register, mostly because of this:
The application has been notarized and it’s ready to go. I did make the following change to Paragraph 7 on the advice of my attorney:
In this litigious society, if one party gives up rights, then BOTH parties should give up the same rights. I'll finish my description and my protocol proposals and have it in the mail by Monday.
I kept lurking, hoping that there was a lawyer on the thread who would call BS. But since now, many days later, nobody has, I will do so.
Now, I'm not a lawyer, but I do work in a law firm. I see dozens, maybe hundreds, of contracts cross my desk every week, and since I'm a geek and want to go to law school, I read pretty much every one, so I like to think that I've picked up a thing or two.
One thing I've learned is there are many different types of contracts, and they all tend to include different types of language, clauses, and terms. Relevant to this discussion is a type known as a "Contract of Adhesion." This is a contract that is non-negotiable; you either take it or leave it. While generally frowned upon by courts, Contracts of Adhesion have been held as valid, but are subject to a higher standard of review than a contract where parties are standing in more equal positions. But I digress, as I am prone to do, this is not my point.
My point is this:
If you consulted an attorney, he would (should?) have told you that this was clearly a Contract of Adhesion. He then would have (should have?) told you that you were wasting your time trying to change the terms. Mutual limitation of liability, like you want here, pretty much
never appears in these kind of contracts. Why? Because of the unequal negotiating positions intrinsic to Contracts of Adhesion, the superior party will
never accept the term (barring incompetence).
Furthermore, he probably would have advised you that since this was a Contract of Adhesion, it would most likely be to your advantage to not try and change the terms, as more avenues would be open to you if you ever had to ask for a judgment of invalidity (specifically the 'I didn't understand it' argument, as well as the 'unsophisticated parties' possibility demolished by consulting council).
Thus, in my not-professional opinion, if you had really consulted a lawyer on this matter he would have told you this, and not the idealistic, but legally-worthless:
"In this litigious society, if one party gives up rights, then BOTH parties should give up the same rights."
Had you consulted a lawyer, you would not have tried to waste your time like this. I can only conclude one of two things. Either:
A. You're lying about consulting council, and merely want an excuse to insert a provision you think will protect you from litigation (and probably wouldn't, given that the JREF wouldn't have to file suit in Florida, but again, I digress). Either you think you need this shield because you're planning fraud, or you simply like to play amateur lawyer, as I do.
or B. I'm completely wrong, and, for whatever reason (maybe he's a friend you asked casually?) your lawyer actually did tell you to try and get mutual limitation of liability. In that case, your lawyer, in my opinion, didn't put much thought into it.
I apologize that I must question your word, but I honestly think A is more likely.
Please note: This is a personal opinion; nothing in the above constitutes legal advice. Etc. Etc. So on and so forth.
