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Subject: Fwd: [ebxml-bp] WI-71 isLegallyBinding Attribute and Legal Intent
Attention to the LegalXML Group: John Messing graciously provided some input to questions we had sent recently, via a message to Sally St. Amand from the ebXML Business Process TC. As indicated, we are soliciting any feedback from the LegalXML group on an attribute, isLegallyBinding [1], that is associated with business transaction activities. Should you have any further insight it would be most appreciated. Thank you ahead of time from the ebBP team. Note: A more detailed summary if required can be found at: http://www.oasis-open.org/archives/ebxml-bp/200407/msg00133.html. [1] Likely to be changed to HasLegalIntent. > Date: Mon, 16 Aug 2004 04:04:23 -0700 (PDT) > From: "Sally St. Amand" > To: ebxml-bp@lists.oasis-open.org > CC: John Messing , legalxml-ms@lists.oasis-open.org > Subject: [ebxml-bp] Input Re WI-71 isLegallyBinding > > 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. >
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