Lex Spoon wrote: > Why do you think *real* lawyers seem to be okay with such clauses?
Sometimes parties in a uniformly constructed contract agree to a particular venue, perhaps because both are qualified to practice law there. In a free software license or commercial EULA however, the licensee is not at liberty to negotiate, so the venue clause is wholly to the advantage of the licensor. In a review of section 2B-108 in UCITA, the American Law Institute describes the exercise of such unilateral forum clauses as a "perversion of the notions of freedom of contract": "But the real evil of the provision lies in the potential the drafter has for bringing legal action in its chosen forum against the non-drafter. In any case in which the drafter brings its action, the non-drafter will have to go to the foreign jurisdiction (or hire a foreign lawyer there) to challenge as "unreasonable and unjust" the chosen forum's exercise of its own jurisdiction. The penalty for not traveling to the forum is to suffer a default judgment which will then require a most difficult and expensive collateral attack when the judgment returns to the non-drafter's jurisdiction with the Sheriff for execution against the non-drafter's assets." [...] "It is a perversion of the notions of "freedom of contract" to bind a non-drafter to long-term commitments to the Drafter under the assent provisions of Article 2B, sue her in a foreign jurisdiction for violating the terms in the form, and then require her to litigate the "unreasonable and unfair" issue in that foreign jurisdiction or suffer a default judgment that will be very difficult to attack once the Sheriff arrives in the residence state with a writ of execution." "The Draft's choice of forum provision is way out of balance; it is all the more so when the assent provisions of the Draft form the basis for the non-drafter's agreement to it." http://www.ali.org/ali/Woodward2.htm -Jim
