dissenting.
I disagree with the majority’s conclusion that contractual waivers of the right to trial by jury are unenforceable.
1. The provision in our Constitution that “[t]he right to trial by jury shall remain inviolate” means only that the right to trial by jury as it existed in England at the time this paragraph was adopted into our State Constitution shall remain unaltered. Wright v. Davis, 184 Ga. 846, 852 (193 SE 757) (1937). The foregoing phrase does not expressly state, nor does it imply, that the right to trial by jury may not be waived in the same manner as any other constitutional right. However, because Art. I, Sec. I, Par. XI and OCGA § 9-11-39 set forth certain circumstances in which a party may waive the right to trial by jury and because those circumstances deal with waivers once litigation has commenced, the majority holds that pre-litigation waivers are precluded.
I find that no such affirmative conclusion can be drawn from Art. I, Sec. I, Par. XI and OCGA § 9-11-39. These provisions do not provide that their methods by which the right to a jury trial can be waived are exclusive, and it is just as likely as not that the drafters of the Constitution and the statute did not even consider whether prelitigation waivers were appropriate. I find that the ambiguity created by the silence of Art. I, Sec. I, Par. XI and § 9-11-39 on this issue should be resolved in favor of the right to contract for such waivers. In this regard, “[p]arties are free, except as prohibited by statute or public policy, to contract on any terms and about any subject matter they so desire,” Duffett v. E & W Properties, 208 Ga. App. 484, 487 (430 SE2d 858) (1993), and any “impairment of that right [to contract] must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation,” Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163) (1980), aff’d 248 Ga. 391 (282 SE2d 903) (1981). Here, Art. I, Sec. I, Par. XI and § 9-11-39 do not expressly impair the ability to contract for pre-litigation waivers, nor do they necessarily imply such an impairment; they simply leave a court to speculate on the point. For this reason, they should not be construed to contain such an impairment.
*342Furthermore, I note that a majority of the courts that have considered the question have concluded that pre-litigation waivers of a constitutional right to a trial by jury are valid and enforceable. See Telum, Inc. v. E. F. Hutton Credit Corp., 859 F2d 835 (10th Cir. 1988), cert. denied, 490 U. S. 1021 (1989); Gaylord Dept. Stores v. Stephens, 404 S2d 586, 588 (Ala. 1981); Annot., 73 ALR2d 1332, 1333 (1960). In fact, courts should readily place their imprimateur on such provisions for several reasons. First, by avoiding the delays and expense inherent in jury trials, they economize litigation for the parties and for an already overburdened court system, thus furthering the public interest. Moreover, in most situations, at the time of entering a contract containing such a waiver, the parties can readily understand the nature of any disputes that might arise based on the contract and can make a knowing and intelligent decision whether to waive their right to a jury trial in the event a dispute does arise.6
2. Finally, the majority errs by analogizing the waiver of. the right to trial by jury to a confession of judgment and by concluding that because we have held that a confession of judgment can only arise after the commencement of litigation, we should hold that a waiver of the right to trial by jury may only occur after litigation has started. First, a confession of judgment and a waiver of the right to jury trial are not similar in their impact. With a confession of judgment, a defendant forfeits a panoply of constitutional and statutory rights, including the right to any trial whatsoever. With a waiver of the right to trial by jury, a party forfeits only the right to a jury trial while retaining all other rights available under the law to litigate the dispute in a bench trial.
Moreover, the rationale that this Court has given for holding that a confession of judgment must occur after litigation commences does not apply to a waiver of a right to trial by jury. We have held that a confession of judgment is “the substitute for a verdict,” Information Buying Co. v. Miller, 173 Ga. 786, 791 (161 SE 617) (1931), and thus, “as the verdict can not be taken until the suit is filed, it seems clear that a confession of judgment, which takes its place, can not be made prior to the institution of the suit,” id. As a waiver of the right to trial by jury is not a substitute for a verdict, the reasoning of Information Buying Co. is inapplicable to this case.
3. For the foregoing reasons, I must dissent to the majority’s speculation that Art. I, Sec. I, Par. XI and § 9-11-39 were intended to impair the freedom of the citizens of this State to contract for the right to have disputes arising from their contract resolved through a *343bench trial.
Decided July 11, 1994. Kilpatrick & Cody, H. Quigg Fletcher III, Matthew H. Patton, Lisa S. Edwards, for appellant. Branch, Pike & Ganz, Burt DeRieux, Keith J. Reisman, Daryl G. Clarida, Tanya M. Ashley, Cook & Palmour, Bobby Lee Cook, for appellee. I am authorized to state that Justice Fletcher joins in this dissent.I express no opinion regarding whether contractual waivers of the right to trial by jury may be voided due to unconscionability or other similar considerations.