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Reply-To: "Kevin Aylward"
From: "Kevin Aylward"
References: <3D78DCBD.8040105@BOGUS.earthlink.net> <firstname.lastname@example.org> <3D79F56B.E095CBB1@webaccess.net> <3Mqe9.email@example.com> <3D7A61AB.7AD3A3F8@webaccess.net>
Subject: Re: Publishing engineering techniques?
X-Newsreader: Microsoft Outlook Express 6.00.2600.0000
Date: Sun, 8 Sep 2002 08:47:02 +0100
NNTP-Posting-Date: Sun, 08 Sep 2002 08:47:03 BST
"Chuck Simmons" wrote in message
> Kevin Aylward wrote:
> > "Chuck Simmons" wrote in message
> > news:3D79F56B.E095CBB1@webaccess.net...
> > > John Woodgate wrote:
> > > >
> > > > I read in sci.electronics.design that Frank Bemelman
> > > > wrote (in
> > <3d790959$0$21872$1b62eedf@news
> > > > .euronet.nl>) about 'Publishing engineering techniques?', on
> > Sep
> > > > 2002:
> > > > >Regulations required I had to sign a contract anyway, so we
> > > > >they send me a contract for "0" Euro.
> > > >
> > > > Under English law, that probably wouldn't be a contract; there
> > to be
> > > > a 'consideration', usually a payment of some sort. The contract
> > should
> > > > have been written with 1 Euro as the consideration (1 Euro-cent
> > might
> > > > not be enough). I believe US law is similar.
> > >
> > > Apparently not.
> > Apparantlly so.
> > > All sorts of contracts have no exchange of tangible
> > > value.
> > Nope. If no exchange of value, you don't have a contract. Its that
> > simple.
> > >NDA's and other performance agreements not involving money come
> > > to mind.
> > Consideration does not have to be for money. Any exchange of value
> > usually acceptable. "Information" has been well recognised to have
> > value, so giving information in exchange for secrecy is clearly an
> > exchange of value. There is certainly value in secrecy. Although the
> > courts have difficulty is determine how much secrecy is worth, they
> > still do it.
> > > More blatant was the faculty contract of a professor I knew at
> > > a major US university. His contract stated that he was appointed
> > > professor of physics for some achedemic year at a salary of $0.00
> > > month "contingent upon availability of funds."
> > If the contract essentially said you can have this job in return for
> > nought, it would not be a legal contract. It would be a worthless
> > promise.
> The terms of that contract were enforced even though there was no
> transfer of value between the regents or the professor. The contract
> a convenience to both as it was binding upon a third party. Namely,
> US government. The existance of the contract determined what
> institutions recieved cuts of grant money. I suppose it can be argued
> that the third party created value but the contract itself did not
> mention the third party. From the contract point of view, the
> got an office but had no duties to perform. The university, for its
> part, provided labs and student offices under a separate overhead
> contract. The faculty contract made the overhead contract meet the
> relating to research contracts. Whether legal or not, zero salary
> faculty appointments have been used when a researcher needs a
> remote from his "home" university. The formality simply acknowledges
> that grants go with the PI without mentioning the grant. I don't know
> the practice is as common today as it was when the research game was
> bigger. On the general principle that the lower the stakes, the
> the competition, I suspect it is.
I think that more details on this are required to get the full picture.
For starters, usually, there is a principle of the doctrine of privity
of contract. That is, if A contracts with B, then C is not bound by that
contract. There are some exceptions however, e.g. converts on the
subsequent resale of land.
> I have a bone to pick with NDA's in that in many cases the information
> has no value whatever. I am party to two NDA's in which my breach
> produce absolutely no monetary loss to the other party nor give any
> other party any gain. This was not true when I signed them but the
> wording keeps them in effect even when there is no value (it is a
> of competition in a space where products are free - very strange).
But if there is no monetary value to the contract now, then you have
nothing to worry about. Except when there is a specific penalty by
statute for breach of that particular contract. e.g. if a landlord in CA
does not give an itemised statement of why he desires to hold on to a
security deposit within 30 days, he is liable to 3 times damages, even
if he was justified after the fact. You can usually only sue and recover
for breach of a contract for actual damages incurred. The idea is to put
the plaintiff in the same position that he would be if the contract was
carried out as agreed. Ok, they could get an injunction, after you had
actually publicly disclosed the information, to prevent further
publication, but that would be the pointless setting the gate after the
horse has gone.
> NDA's you speak of have time to market value or trade secret value
> (trade secrets are more powerful and useful than patents but more
> slippery in that patents tend to be used only as trading chips with no
> value attached while trade secrets secure real advantage). Also, I am
> currently bound by NDA's to which I am not a signator. This oddity
> to be an interpretation that allows one contract to inherit the full
> terms of contracts entered into by the contractee with third parties
> after the original contract was signed.
In *general* this is not true. For example, in my "Law of Contract"
book - Cheshire Fifoof and Furmston ISBN 0-406-51491-7, page 461 section
of "Attempts to impose Liabilities upon Strangers" it says "It has long
been an axiom of the common law that a contract between A and B cannot
impose a liability upon C".
However, as noted there can be specific exceptions, e.g. contracts
concerning land, and it should be pointed out that there are conditions
on these exceptions.
If A contracts with B, and B contacts with C, C may be bound to a
contract with A. However, for this to be that case C must be aware of
the conditions that B owes A
> Probably the weirdest contract I ever ran into was between a friend
> a major corporation. My friend entered the contract expecting to make
> money based on his recognized expertise in a certain mechanical
> technology. The contract was exclusive (not unusual) but the
> corporation, during the years the contract ran, never asked for my
> friend's services but prevented him from selling elsewhere. By the end
> of the contract, it was clear that the corporation entered into the
> contract to keep my friend from being an unpredictable force in their
> business and used the contract as a threat. After all, if he fought,
> they could fight back by calling him in for a few hours. My friend
> decided not to fight but refused to renew the contract a few years
> later. The corporation had no idea whether or not my friend's
> was of value and came up with cheap insurance against it. BTW, my own
> current contract has a minimum involved to keep it in force because I
> ended up becalmed myself for about 6 months while under contract. The
> minimum tends to keep better focus on contract issues (though I did
> enjoy the time off - sort of a sabatical with the disadvantage of
> on call).
There is here, of course, the issue of restraint of trade.
> What constitutes value in a contract is a matter of who is the most
> convincing liar in some cases. If a court acknowledges a contract with
> no monetary value then there is no objective test for validity of a
I don't know if any art of law can be objective in the engineering
sense. You cant pout a number on "proof beyond a reasonable doubt".
>None whatever. Thus I stand by my "apparently not." I further
> point out that the marriage contract is almost never enforcable on one
> of the parties and almost always enforcable on the other indicating
> there cannot be consistency or logic in law.
I dont know what you mean here.
>This is usually hidden by
> legal definitions of words being entirely different from common usage.
> It avoids the risk of the general population seeing the fraud. It
> in a limited way but the lawyer jokes prove that very few are fooled.
> You may say that statute requires a contract to have value but
> decisions in cases of dispute indicate that there is no legal
> standard of value.
I certainly agree that the Law can twist common sense a bit and come to
logically incorrect conclusions, but for the most part[art its
"First, your lordship". "I will show that my client did not take the
vase and was quite unaware of its existence". "Secondly, I will show
that he returned it in due course, and thirdly that the crack was in the
vase before he took it".
SuperSpice, a very affordable Mixed-Mode
Windows Simulator with Schematic Capture,
Waveform Display, FFT's and Filter Design.
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