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Robert P. Chamberlin, Esquire

Office of the Attorney GeneralOctober 18, 2002

2002 WL 31663333 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2002-0606
*1 October 18, 2002

Re: Contract Provisions

 
*1 Robert P. Chamberlin, Esquire
*1 Post Office Box 567
*1 Hernando, Mississippi 38632-0567
Dear Mr. Chamberlin:
*1 Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and reply. Your questions and the responses will be set out and answered below.
*1 1. Can the County enter into a contract that requires them to waive the right of trial by jury?
*1 Response: No. We have previously opined that the state and its political subdivisions are governed by constitutional constraints, including the prohibition against diminishing or relinquishing an obligation or claim held or owned by the state as set forth in MS Const. Art. 4 Section 100. MS AG Op., Clark (June 7, 2002).
*1 2. Can the County enter into a contract that requires the County to enter into non-binding mediation?
*1 Response: Mediation is defined as the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation does not always result in a settlement. (www.law.com) There is nothing to prevent a political subdivision from agreeing to non-binding mediation.
*1 3. Can the County enter into a contract that requires the County to enter into binding arbitration?
*1 Response: No. Binding arbitration agreements made by political subdivisions are a form of dispute resolution which do not encompass protections of litigation, such as summary judgments, the discovery process and avenues of appeal, and may run afoul of constitutional provisions and statutes. MS AG Op., Clark (June 7, 2002)
*1 4. Can the County enter into a contract that waives consequential or special damages?
*1 Response: No. See answer to question 1.
*1 5. Can the County enter into a contract that waives punitive damages?
*1 Response: No. See answer to question 1.
*1 6. Can the County enter into a contract that waives damages of any type?
*1 Response: No. See answer to question 1.
*1 7. Can the County enter into a contract that limits damages to the contract price?
*1 Response: No. See answer to question 1.
*1 8. Can the County enter into a contract that limits damages to some certain amount?
*1 Response: No. See answer to question 1.
*1 9. Can the County enter into a contract that limits the County's right to cancel, reduce or set off for any reason?
*1 Response: No. See answer to question 1.
*1 10. Can the County enter into a contract that indemnifies the other party?
*1 Response: No. See answer to question 1.
*1 11. Can the County enter into a contract that waives rights and remedies conferred upon a Lessee by Article 2(a) of the UCC?
*2 Response: No. See answer to question 1.
*2 12. Can the County enter into a contract that lowers or modifies the statute of limitations for the filing of a claim?
*2 Response: No. See answer to question 1.
*2 13. Can the County enter into a contract that limits warranty of merchantability?
*2 Response: No. See answer to question 1.
*2 14. Can the County enter into a contract that limits any other common law warranty?
*2 Response: No. See answer to question 1.
Sincerely yours,
*2 Mike Moore
*2 Attorney General
*2 Beverly A. Bolton
*2 Special Assistant Attorney General
2002 WL 31663333 (Miss.A.G.)
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