waiving right to trial by jury

[L'Avion]

This morning, I sent an inquiry to EAA for an opinion:

I have another question which you may wish to refer to the EAA legal department, concerning item 14 of the "EXPERIMENTAL AMATEUR-BUILT AIRCRAFT PURCHASE AND SALE AGREEMENT WITH WAIVER AND RELEASE OF LIABILITY," which states in part: "Seller and Purchaser renounce and waive any right whatsoever to a trial by jury."

Some of us are highly unlikely to waive our rights to trial by jury in any instance, and for me insistence on this phraseology would kill a sale. With five minutes research this morning, I've found at least two states (without benefit of Westlaw) that would invalidate this clause, and I feel that there may be more.

Ref.:

http://online.wsj.com/article/SB1092...E(article-body)

http://www.milbank.com/NR/rdonlyres/...B/0/051110.pdf

Yes, I realize that this clause might be stricken from any agreement, but it leaves the purchaser open to some compromise, which I would consider unfair from the beginning.

Any thoughts from EAA on this matter?
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Most of us have our own thoughts regarding legal opinions, but who among us would want to waive his/her right to trial by jury in the purchase of an experimental aircraft, or any aircraft?

[Jamie]

I agree with about waiving your right to a trial by jury. I don't like it one bit.

But you must also consider that many of your utilities, the services you use, employment contracts, etc. have basically the same stipulation and force you to use an arbiter (never chosen by you). It's been getting a lot of attention in legal circles in the last few years.

[ptrotter]

I would not want to waive these rights if I were purchasing the aircraft, but I would want to waive the rights if I were selling it. Even though the contract probably limits any liability the seller may have since the buyer is agreeing that the plane is experimental, juries have a great tendency to disregard those agreements and award damages anyway. An judge or Arbiter is much more likely to view the contract as it is written. This phrase is in there to protect the seller.

[Rivethead]

Given the way juries can be swayed I'm not sure you're giving up much and in the long run may actually be gaining. A "good" judge should be able to cut right to the chase. I certainly wouldn't want to give up my right of appeal though. Today's high cost of General Aviation has it's roots in a trial by jury that was decided by an overly emotional jury.

No offense to the legal advice given by the above posts, but.... it is worth what you paid for it. Consult with an attorney if you really want an answer you can count on. Much depends on the substantive law of the jurisdiction you reside in, and that of the jurisdiction that the seller resides in, and forum selection and/or choice of law clauses in the contract can make a big difference in how that all plays out. The scope and details of the jury waiver - bench trial? binding arbitration? - make a real difference, too. And don't be too hasty to bash juries - my experience, as I think most other experienced trial attorneys would confirm - is that they work very hard to follow the law as the judge gives it to them, and to apply that law to the evidence in making the decisions they are asked to make.

Tort claim by a non-party to the contract? All bets are off.

In Washington, at least, these are valid where the basis of liability is merely negligence - but not for "gross negligence", as our courts define that. And, bear in mind, that this only applies vis a vis the parties to the contract; third parties (such as your wife, kids, persons on ground, etc.) would not be bound by such a provision. Hold harmless/indemnity clauses are typically put into contracts to shift those burdens to one party or the other.....

[Jeff R]

If you try to stike the clause, then you probably won't be sold anything.

[strahler13]

Rutus is right. It's probably the estate of your buyer that you may need to worry about weather or not you have a no jury trial stipulation in your contract. You just gotta love those trial attys., don't ya?

[USCANAM]

Sometimes I wonder what the United States would be like if we only had half the amount of lawyers that we have!!
Do you think we could survive with maybe only a quarter???
Just dreaming
Jack

[rv4bill]

You should call Pat Phillips who has a law firm in Orlando. Pat actually wrote the waiver that is available on the eaa website. You may be charged, but I doubt it if you are looking for a clarification on the legality of the release. His number in Orlando is 407-425-7676