[HN Gopher] Contract by Email
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Contract by Email
Author : feross
Score : 58 points
Date : 2021-08-12 17:03 UTC (5 hours ago)
(HTM) web link (writing.kemitchell.com)
(TXT) w3m dump (writing.kemitchell.com)
| benatkin wrote:
| It's so pretty, but it's still terrible.
|
| Check the Survival section.
|
| "No reverse engineering" for 5 years after the 1 year contract
| terminates (everything under the Confidential Information
| section).
|
| Not signing that. Will have to consider uninstalling email apps
| from my phone, so I don't accidentally agree to one of these when
| I'm behind on sleep. (https://www.sleepfoundation.org/sleep-
| deprivation/lack-of-sl...)
| EGreg wrote:
| This won't actually work.
|
| Because the document at that link can change. What can work is if
| there is a hash of the data, and you hope that the data is still
| there at the link. Better if you have the actual data that was
| signed. Which means, we're back to actual documents.
|
| What we SHOULD have, however, is a github for lawyers.
| esquivalience wrote:
| A paper contract can easily change as well. Ultimately it just
| comes down to people telling the truth in court, supported by
| evidence. You'd be surprised how often legal disputes come down
| to this - but people tend to be honest about these things,
| because fraud is a tough line to cross, and fraud on the court
| is quite another.
| kragen wrote:
| _Preventing_ a web page from changing requires continuous
| significant effort. _Changing_ a paper contract requires
| significant effort, unless you just, you know, lose it, or
| drop it in the gutter, or something.
| id5j1ynz wrote:
| What would github for lawyers be? I think all you'd need is
| lawyers using github!
| sbuttgereit wrote:
| You mean kinda like https://github.com/kemitchell?
| dctoedt wrote:
| > _Because the document at that link can change._
|
| The document at the link is a PDF, so the "the document is
| changeable" problem could be addressed by downloading the PDF
| and attaching it to the email agreement to serve as the record
| copy.
|
| TFA also points out that the document is at the Internet
| Archive:
| https://web.archive.org/web/*/https://waypointnda.com/3.0.0
| Y_Y wrote:
| Why not just include the contract in the email then? It's
| just text right? Three's no special legal meaning to the
| markup.
| dctoedt wrote:
| > _Why not just include the contract in the email then?_
|
| One of the advantages of a fixed reference document is
| that, apart from confirming that you have _that_ document,
| you don 't have to _read_ it to know what it says -- and to
| have a sufficient degree of comfort that the other side isn
| 't trying to sneak something past you.
|
| In contrast, if Party A (or its lawyer) copies and pastes
| the contents of a reference document into an email, then
| Party B will have to read the thing, which will take time
| and, if a lawyer is involved, cost money in legal fees.
|
| An analog that comes to mind is the INCOTERMS rules for
| shipping goods: If you agree that the goods will be shipped
| DDP (Delivered Duty Paid), or EXW (Ex Works), or whatever,
| then you _know_ what you 're getting, without having to
| read the rule again to be sure the other party isn't trying
| to slip something in on you.
|
| Another analogy is arbitration: If you agree to the
| American Arbitration Association's rules for commercial
| arbitration, then all concerned can go to the AAA Website
| to get a reference copy.
| Y_Y wrote:
| I see your point here, but I'd counter that it's
| technologically trivial to check that the text matches a
| reference. If you already have a copy of the contract
| that you've read and agreed to, and this email claims to
| have included the same contract in a standard form, then
| nobody needs to sit down and read the thing.
| dctoedt wrote:
| > _it 's technologically trivial to check that the text_
| [of an email] _matches a reference_
|
| Remember who we're talking about here: Lawyers and
| business people -- too many of whom don't even know how
| to use Microsoft Word "properly." [0]
|
| (You have no idea how many contract drafts I review in
| Word where the drafter used 'Normal' style for everything
| and just bold-faced the headings; used blank lines to put
| spacing between paragraphs; and didn't know how to do
| automatic paragraph numbering.)
|
| [0] Obligatory link to the famous comment about Dropbox's
| launch: https://news.ycombinator.com/item?id=9224
| BlueGh0st wrote:
| >TFA also points out that the document is at the Internet
| Archive
|
| IME it seems to be trivially easy to have things removed from
| the Internet Archive.
|
| >How can I exclude or remove my site's pages from the Wayback
| Machine?
|
| >You can send an email request for us to review to
| info@archive.org with the URL (web address) in the text of
| your message.
|
| https://help.archive.org/hc/en-
| us/articles/360004651732-Usin...
| adventured wrote:
| It's not trivial. Archive.org intentionally makes it an
| annoying process to either have material removed or
| excluded from their index/ing. You also must own and
| control the domain in question where the content is
| located, which nullifies the premise here (waypointnda.com
| is owned by someone else).
|
| It used to be trivial to hide existing content in their
| index from being viewable (for your domains). They entirely
| changed that a number of years ago.
| robbedpeter wrote:
| Why are pdfs any more secure than a txt file, other than the
| editing being more obnoxious in the case of pdfs?
| dctoedt wrote:
| Hard-copy documents can be fraudulently altered after
| signature too. The question is, how much more burden do you
| want to impose on the parties to address the infinitesimal
| fraction of cases where that kind of fraud might be
| involved.
|
| EDIT: Each party presumably will have email records with
| the PDF attachment -- and if the attachments don't agree,
| then the parties' lawyers will be busy. But again, how
| likely is that to happen, and how much time and money do
| you want to spend to prevent it? At some point you hit
| diminishing returns (and OCD behavior).
| sdoering wrote:
| This reminded me of a great talk (in German) by David
| Kriesel about scanners not scanning correctly but
| replacing letters and numbers because of pattern matching
| (if I remember correctly).
|
| It was a really great talk. Not sure if there is an
| English version somewhere:
|
| https://www.youtube.com/watch?v=7FeqF1-Z1g0
| [deleted]
| denton-scratch wrote:
| You can make a contract on the phone; hell, two people in the
| middle of a meadow can make a verbal contract that's completely
| valid (provided there's an "exchange of considerations", and the
| contract is "fair" - depending on jurisdiction).
|
| The problem with verbal contracts is that it's hard to produce
| evidence about such contracts, if it comes to enforcement.
|
| Email would be OK, if the agreement were assigned to the custody
| of some mutually-trusted party. It's no good if the parties to
| the agreement each save their copy of the text/plain agreement on
| their own corporate mailserver.
| kemitchell wrote:
| Very, very few signed, written contracts get deposited with a
| neutral. Parties keep signed "file copies" among their records.
| For big or important deals, one or the other's lawyer compiles
| and shares a "closing binder". Mostly these are PDFs, on file
| servers and mail servers.
|
| Practical evidence is not technical proof. Methods of technical
| proof don't cover all the potential legal challenges.
|
| The goal is establishing terms before judge or jury. Do that
| and the court can enforce.
| dctoedt wrote:
| The Statute of Frauds _requires_ some societally-significant
| contracts to be in writing, and makes oral contracts in those
| categories unenforceable. The law-student mnemonic is MY LEGS
| -- a written contract is required for agreements concerning:
| Marriage (e.g., prenups); Year (contracts that _cannot_ be
| performed within one year); Land; Executor (when the executor
| of a dead person 's estate agrees to pay the decedent's debts
| out of the executor's own pocket); Guarantor (of another's
| debt); Sales (of goods for $500 or more). [0]
|
| Nit: Strictly speaking a written contract _is_ a "verbal"
| contract, because in this context, _verbal_ means, in essence,
| using words, as opposed to, say, gestures or drawings. (
| "Verbal" derives from the Latin _verbum_. [1])
|
| [0] https://www.investopedia.com/terms/s/statute-of-frauds.asp
|
| [1] https://en.wiktionary.org/wiki/verbum#Latin
| only_as_i_fall wrote:
| >The statute of frauds was adopted in the U.S. primarily as a
| common law concept--that is, as unwritten law.
|
| I found that part pretty amusing
| kragen wrote:
| Most of the time when there's a court case over these things,
| the disputed facts do not include which email was sent at what
| time and what it said. If the other party _does_ choose to
| dispute those facts, it 's true that you would have a hard time
| proving that you were in the right without some sort of witness
| like what you're describing; but usually they don't. (It's
| neither necessary nor sufficient that both parties trust the
| witness at the time; what matters is whether the court believes
| the witness if a dispute arises.)
| briandoll wrote:
| Or just never sign NDAs since they are almost universally
| egregious and don't benefit you at all to become party to. 99% of
| the time when you say no, the other party will just shrug and say
| ok.
| Y_Y wrote:
| I have NDAs preventing clients from passing on the awful
| secrets I reveal to them, I don't know if that's egregious but
| I definitely appreciate it.
| bob1029 wrote:
| NDAs are extremely important for businesses to be able to work
| together on common projects. I work in finance and if I told
| one of my customers or vendors that we were not going to
| execute an NDA, the conference call would end very abruptly.
|
| Also consider if the tables were turned and it was you who had
| the mountains of IP and other liabilities that would be
| shielded by an NDA.
| lowercased wrote:
| totally depends on situation.
|
| I've been asked to sign NDAs. "Hey, i got this cool idea, sign
| my NDA". The couple times I've done that have been... not worth
| the effort, and never amount to anything. But they're still
| some mental overhead I have to keep account of for a while.
|
| "We're bringing you in to project X, and we've agreed to
| payment terms, and project length. Sign this NDA preventing you
| from sharing our corporate secrets (with some reasonable
| definition of 'secret') to work on the project". I've generally
| no problem with those sorts - they are a part of real
| project/work/life, and generally money is attached.
|
| I've given up dealing with the first sort, and have "lost out
| on some big opportunities" (their words, not mine) because of
| the refusal. I've managed to eke out a living nonetheless.
| rubidium wrote:
| "99% of the time when you say no, the other party will just
| shrug and say ok." You must live in a particular bubble of
| NDA's.
|
| For product R&D in Biotech (non-California at least), NDA's are
| nearly universal and never optional. You don't sign, you don't
| work.
| paxys wrote:
| Yeah, their scenario is a fantasy unless the party signing
| the NDA has more leverage, which is never the case.
| hn_throwaway_99 wrote:
| I sign, and require signatures, for non-egregious NDAs all the
| time.
|
| You will quickly find that at outright refusal to sign an NDA
| will very quickly limit your business options, especially when
| negotiating between corporate entities.
| jrm4 wrote:
| I'm just happy to see something about contracts here that's
| actually about _contracts_ -- not about the blockchain things
| called "smart contracts," which are neither smart (okay, that's
| debatable) but definitely not contracts.
| foobarbecue wrote:
| Yeah and don't you hate how graphs aren't graphs and trees
| aren't trees? These people talk about bootstrapping when they
| aren't even referring to footwear! And always talking about
| bandwidth as if it's a maximum data rate when the term really
| refers to the electromagnetic spectrum! Makes me so angry how
| these people treat language as if it's some fluid thing where
| homonyms develop.
| shuntress wrote:
| "graph", "tree", "boostrapping", and "bandwidth" are all
| fairly accurate analogies.
|
| "smart contract" is a buzzword (incidentally, you may notice
| that it is not _literally buzzing_ ).
|
| The parent comment is like saying _" I'm just happy to see
| something about crypto that's actually about cryptography"_
| foobarbecue wrote:
| Wow, downvoters, excuse me for having a little fun!
|
| But since you want to be serious, let's bikeshed this: What
| word would you rather we use, in place of "smart contract,"
| to refer to the small programs that run on the blockchain?
| nanomonkey wrote:
| What are the necessary components of a contract? If I wanted to
| create a document storage for contract datastructures, each
| having their own unique content addressable hash, what are the
| key features that would be needed to be considered a legal
| contract? Name/Title, creator, recipients,
| signatures/acknowledgements and terms? Are their specific terms
| involved. Any specs on this sort of electronic data?
| dctoedt wrote:
| One of the main points here is that in the U.S., contracts can be
| agreed to by email (or text).
|
| (Kyle, thanks for the shout-out in TFA.)
| jbverschoor wrote:
| Well the same in Europe, but there's also a distinction between
| the levels of how to authenticate parties.
| swiley wrote:
| Why wouldn't that be legal? Obviously you should be using
| S/MIME or GPG if you're worried about fraud but it's not like
| hand signatures are all that secure.
| danielrhodes wrote:
| I wouldn't think about wet ink signatures as a matter of
| security, per se.
|
| A contract is only valid as long as both parties stick to it.
| If there's a disagreement, it's up to a court to figure it
| out. That's where you get into risk mitigation. If you are
| comfortable with a court making a determination based on an
| exchange over email, then great. Courts see email as a valid
| form of proving one's identity. If you want to go further to
| reduce the risk that a court invalidates the contract, you
| can do things like having witnesses, wet ink, notaries, etc.
| Obviously for a contract with low material value, it's not a
| big deal. Signing a multi-million dollar contract? People
| start taking whatever measures they can to ensure things are
| air tight.
|
| A lot of tech people think risk mitigation is only verifying
| somebody's identity, but a court could decide a contract is
| invalid because the person signing it had no idea what was
| inside. So there's a lot more to it.
| warkdarrior wrote:
| Actually _you_ should be using S /MIME or GPG if _the other
| party_ is worried about fraud. If fraud happens (someone
| claiming to be you signs a contract), it is typically the
| other party to the contract that loses, because they did
| insufficient due diligence to ensure that they are entering
| into an agreement with the correct partner.
| CheezeIt wrote:
| Hypothetically, it could be that some law was worded "in
| writing or verbally, or via telegram" and it didn't include
| other forms of communication.
|
| There is in fact a U.S. law that defines "writing" in some
| parts of the law to encompass electronic communication in
| some manner as well. So some federal laws that required
| certain kinds of agreement to be in "writing", like, IIRC,
| exclusive copyright licensing, now permit electronic
| communication.
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(page generated 2021-08-12 23:01 UTC)