When a contract contains a provision for attorney fees to the prevailing party contains a clause in the contract that makes an otherwise unilateral right reciprocal?
California, United States of America
The following excerpt is from Santisas v. Goodin, 17 Cal.4th 599, 71 Cal.Rptr.2d 830, 951 P.2d 399 (Cal. 1998):
The second situation in which section 1717 makes an otherwise unilateral right reciprocal, thereby ensuring mutuality of remedy, is when a person sued on a contract containing a provision for attorney fees to the prevailing party defends the litigation "by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the same contract." (North Associates v. Bell (1986) 184 Cal.App.3d 860, 865, 229 Cal.Rptr. 305.) Because these arguments are inconsistent with a contractual claim for attorney fees under the same agreement, a party prevailing on any of these bases usually cannot claim attorney fees as a contractual right. If section 1717 did not apply in this situation, the right to attorney fees would be effectively unilateral -- regardless of the reciprocal wording of the attorney fee provision allowing attorney
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