RE: Clarification on SERU proposal

["Karen Tschanz" <KTSCHANZ@mail.mcg.edu>]

Perhaps the intent of the drafters should be retained, but 
someone with legal background should be added to the drafting 
group to advise on achieving the intent without undue legalese? 
Just a thought. kst

Karen S. Tschanz,  M.L.S., M.B.A., M.S.O.D.
Asst. Prof./Chair, Content Management
Robert B. Greenblatt, M.D., Library, AB-241
Medical College of Georgia
Augusta, GA 30912
E-mail: ktschanz@mail.mcg.edu

>>> "John Cox" <John.E.Cox@btinternet.com> 3/23/2007 6:35 PM >>>

To clarify (and, I fear, introduce some murky complexities to)
the postings made by Judy Luther and Joe Esposito:

Even if there is no formal written agreement signed by both
parties, a contract exists because a trading relationship exists
in which goods or services have been provided in exchange for
money.  There has to be offer and acceptance (i.e. you offer me a
journal and I buy a license for access to it), consideration
(i.e. I pay for it) and an intention to create legal relations
(i.e. both parties expect to be bound by the transaction.  If a
dispute ever arises, the contract will be implied from the
conduct of the parties.  Indeed, if there were a written
contract, but it never got signed, but the services were supplied
and paid for anyway, that level of "part performance" would
establish the contract.

So far, so clear.

The SERU guidelines are an admirable attempt to remove the
time-consuming and expensive process of negotiating the wording
in a formal written license for electronic scholarly content.

The problem with the draft SERU guidelines
(http://www.niso.org/committees/SERU/SERUdraft0.3.pdf) as they
are drafted is that they are rather general, and open to
different interpretations by different parties.  They also state
that "neither this statement nor this document constitute a
license agreement".  It is therefore possible to argue that using
the guidelines is not intended to create legal relations, and
therefore they form no part of the contract that would exist.
The contractual relationship then defaults to the conduct of the
parties.  Oh dear.  The SERU guidelines need to be much clearer
about setting a set of standards, or rights and obligations, that
CAN be unarguable incorporated into a contractual relationship.

As Sam Goldwyn said, a verbal contract is only as good as the
paper that it is written on.

John Cox

Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com