Contract Headings/Captions: Legal Implication of Technical Solution

["Daniel Greenwood" <dang@mit.edu>]

Jason and John had the following exchange:



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Observation 3: <BlockCaption> and <BlockBody>: <BlockCaption>

and <BlockBody> are sometimes present in John's markup, and sometimes
absent. It seems the <BlockCaption> element is used whenever there is a
<CaptionTitle> (although there is an empty CaptionTitle on 6.4(a)(1) - why
is that?)



Response: It depends on whether the CaptionTitle is layed-out with the
BlockCaption, or whether it is actually a part of the BlockBody.  The empty
one is clearly redundant -- I was modifying another file for the benchmark
challenge.

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Beyond the display/presentation issue, the treatment of titles of sections
(aka headings or caption text) are frequently specifically excepted from the
content of the contractual terms and conditions.  For example, here is
language from the PrivacySecurityNetwork's Model HIPAA Transaction Standard
Trading Partner Agreement/ADDENDUM
http://www.privacysecuritynetwork.com/healthcare/contracts/transaction_stand
ard_contract.pdf)



29.Article Headings. The article headings used are for reference and
convenience only, and shall not enter into the interpretation of this
Agreement. (Optional"29.Article Headings. The article headings used are for
reference and convenience only, and shall not enter into the interpretation
of this Agreement. (Optional)"



Notice that this clause is optional in the proposed model agreement.  Also,
notice that the agreement covers electronic transactions.  This is one of
the types of so-called "trading partner agreements" that followed from the
old EDI TPA era (which itself was a child of the American Bar Association
precursor to the Cyberlaw Committee).  I point this out because I predict
this is a contract type that is more likely than other traditional paper
contracts to move sooner to the fully electronic realm.



And here is similar language form a fully electronic software license (see:
http://www.cdrom-prod.com/license.html )



"11.  Headings.  The headings of the various paragraphs in this License are
inserted for convenience of reference only and are not intended to be a part
of or to effect the meaning or interpretation of this License. "



So, it would appear from my experience in contracts law and from what I've
seen from snooping around other people's contracts on the Internet, that the
semantic (aka "legal") part of our specification might beneficially support
different designation of text that a "heading" or "title" so that such text
could be redacted from the legally binding terms of the contract.  Perhaps
it will depend in part upon whether the contract is to be machine
interrogated or human readable.



 - Dan Greenwood




==============================================
|  Daniel J. Greenwood, Esq.
|  Director, E-Commerce Architecture Program
|  MIT School of Architecture and Planning
|  77 Massachusetts Avenue, Room 7-231
|  Cambridge, MA 02139
|     http://ecitizen.mit.edu
|     or http://www.civics.com
|     dang@mit.edu
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