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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: 
[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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