Originally Posted by jenmat
After further thought, I have decided to keep the clause in my contract from here on out. Gross active negligence in a cake setting would mean that I actively caused someone bodily harm by being negligent in a "big" way. Like putting staples in the cake or somehow causing it to explode and injure the guests. Since I would never be actively negligent anyway, I feel this is fair and as others have said, more neutral.
As I read the above, the OP has decided to alter the wording of her original contract and to keep the new, agreed upon change.
The original wording transferred too much liability to the customer--a person who would only have control of the cake AFTER it was delivered. The original wording had the customer agreeing to take on responsibility for ANY AND ALL negligence BEFORE, DURING, AND AFTER delivery of the cake. The new wording is now balanced, as a good--and fair--contract should be.
I'm not sure why a smart customer, be he a lawyer or not, is being castigated here. Not only did he request a reasonable change, but he ultimately compromised and agreed to the new wording proposed by the baker. The US government should take note--that's how it's SUPPOSED to work.
Everyone should take the time to read--carefully--what they are asked to sign. Saying later that you didn't see it, or didn't understand it, isn't a valid defense against the problems that will arise for you should the clause be invoked in a legal proceeding.
I'm not a lawyer and as I said earlier, I WOULD NOT HAVE SIGNED A CONTRACT CONTAINING THE ORIGINAL CLAUSE, EITHER.
As Jason has said, contracts are living documents that should benefit both parties.