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Major "Legal Terms" Court Decision

by kindsvater
6 replies
A software dispute between California and Pennsylvania companies has resulted in a major, and rare, court decision outlining at length how legal terms must be drafted with SPECIFIC words that MUST be used.

The court noted other judges had disagreed with its rigid rules, so this is new territory with regard to how specific legal terms must be to be enforceable.

As the court said in rejecting legal terms where it was obvious what was intended, but the contract did not use the right magic words in the right places:

"A court should not be called upon to function as a backstop for sloppy contract drafting."

I know scores of Warriors get their legal terms from free (read garbage) sites, copied from someplace else, etc. This is your chance to get some real protection.

Do not take this lightly. Little mistakes can cost you thousands of dollars. I've seen $500,000 blown because of a mistake in basic legal terms.

Here is the court case so you can compare what is being required with what is in your terms:

http://www.courtinfo.ca.gov/opinions...ts/G044512.PDF

For Internet Marketing Law Center members I of course quickly reviewed the standard TOS provided in the members area. It does not need to be changed. (Whew!) But I will be tweaking the language and sending out a report for those who may have modified the language on their own.

Some general highlights from the court:

- Agree a contract is entered into in a specific county.

- Expressly consent to a particular jurisdiction.

- Expressly consent to a particular forum.

- Expressly consent to a particular venue.

(Yes, this seems redundant, but who cares. The goal is to use all the magic words that make a court happy.)

Regarding the venue term, the court said venue terms referring to litigation in a particular county are void with respect to the county reference, but valid as to a state.

I always recommend using a county and will continue to do so since, as the court observed, the parties can agree a contract is entered into in a specific county. And because I have not seen this type of ruling from other states.

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#court #decision #legal terms #major
  • Profile picture of the author Shane N
    You are the man when it comes to this stuff Kindsvater. I will be purchasing your legal package shortly actually. This stuff should not be ignored... Once it's too late, things get hectic... and expensive! Thanks for this share!

    Best,
    Shane
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    • Profile picture of the author attorneyjaffe
      I agree with the court that the contract was sloppy.

      However, I have my clients reserve the jurisdiction and venue for their home county and state.

      If we got down to arguing about "forum", and the court said I was sloppy in drafting my contract, my reply would be -- See my "Severability Clause" which is also in the TOS which allows the client to change the terms to "substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provisions."

      I think that would solve the problem in my client's favor in the case you cited.
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  • Profile picture of the author Joshua Rigley
    Banned
    Thank you Brian for staying on top of the legal issues for the Internet Marketing industry. I'm glad there's at least one Warrior who knows what the heck he's talking about when it comes to Internet law.
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  • Profile picture of the author Zeus66
    Hey, look at that. You found another way to peddle your paid membership site without paying for a WSO. You should actually create a WSO about how to effectively skirt the self-promotion guidelines at Warrior Forum and get free advertising.

    I'm not even being sarcastic here, although I know it might read that way. I'm sincere. You work the system here better than anyone I've ever seen. You shoulda been a lawyer. Oh wait.

    Seriously, good for you and thanks for bringing this to our attention.
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    • Profile picture of the author kindsvater
      Thanks John. I'm taking that as a compliment.

      I work hard at making sure Warriors like yourself are up to speed on new, interesting, and important legal issues.

      The fact I have a product or two that relates to those issues is a necessary consequence of having the expertise of bringing you new, interesting, and important legal issues.

      But ... I did consider the issue when posting so I made sure:

      1. I gave explicit instructions in the post on what someone, like you, needs to include in their TOS based on this new decision.

      (Donations for the freebie can be sent to my office )

      2. I made sure my "graphic" sig banner was for another product. As for the written part of my sig I'm too scared of screwing up my SEO to mess with the links.

      If you want to see my 'Save Your Butt' sig banner I can ... oh wait, there I go again promoting my ...

      3. I contacted other attorneys (Silber, Young, Jaffe) who have posted on the forum to make sure they were aware of the case so that they could review the post, the case, and contact their clients to make sure their contracts were up to snuff.

      If you're aware of another attorney who contacts the "competition" to help them out let me know. Not that they're really competition - colleagues is better. If you'll review my prior posts you'll see I have publicly told Warriors about other IM attorneys they can contact.

      I contacted them so that, for instance, if YOU are Silber's client he would be aware of the case so he could review YOUR contracts to make sure YOU were legally protected.

      John, you haven't been around long enough to know this, but my legal forms came about because of a serious problems several Warriors were having on the forum because of 'bad' legal terms floating around the net.

      It isn't something "peddled" on the forum. It was originally created for forum members.

      Of course, back then the free WSO section was very different from what it is now.

      It's too bad a new breed of Warriors are more concerned about selling on the forum, who pays for what, if an informational post is too promotional, etc.


      This is really ironic, and John, I want you to pay attention to this:

      In your sig you link to one of your websites. Paragraph 8 of that website has the kind of "sloppy" legal terms the court in my post was talking about. You are NOT protecting yourself like you think you are, or want to be - or should be.

      So instead of worrying about me, I strongly urge you to carefully review my post, the court case, and what I say is needed in a TOS.

      If you need legal assistance in preparing proper legal terms for your website, then contact one of the 3 attorneys mentioned above, or a competent attorney in your local area.

      .
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  • Profile picture of the author Brad Pollina
    Nevermind what they naysayers say. I appreciated the tidbit and learned something new, so I thank you very much for the info. I also appreciate that you didn't keep it to yourself and shared it with the "competition". Keep it commin'!
    Signature
    "Be patient with me....God isn't finished with me yet!"
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