NOTE: This is a post from John’s site (Thanks John) , I am posting the comments in order, under only a partial main post, since they appear more interesting and important.
Wednesday, November 27, 2013
Retired Judge Dale has it wrong.
Direct Response to Retired Judge Dale’s Post Of November 26 2013 pertaining NDA (contract)
Who Can Enforce A Contract
Of course, contracting parties can enforce contracts between themselves, as can certain third-party beneficiaries. But, then the questions arise -who is a party to a contract, and what type of third-party beneficiary enjoys the right to enforce? How these questions are answered in practice is very important.
“If the first rule of medicine is ‘Do no harm,’ the first rule of contracting should be ‘Read the documents.”’ Villacreses v. Molinari, 132 Cal.ApPAth 1223, 1225 (2005). In Villacreses, the contracting parties agreed “‘to have neutral arbitration of all disputes to which it applies….”’But turns out-there was no “it.” “[T]he mysterious ‘it’…is intended to refer to an arbitration provision that the parties [did not put into the contract].” So, while it was lovely that the parties agreed to arbitrate everything to which their arbitration agreement applied, their arbitration agreement applied to nothing, because there was no arbitration agreement.
Likewise, it is not unusual to receive in discovery, or have attached to pleadings, unsigned, or partially signed “contracts.” And someone who does not sign the contract “is not a party to the contract,” Turner Gas Co. v. Workmen’s Camp. Appeals Bd. 47 Cal. App. 3d 286, 291-292 (1975). This questions the worth of unsigned or partially signed documents on the issue of who can enforce a contract. On the other hand, an unsigned contract or a contract signed by someone other than the party attempting to enforce a contract can be golden in that it can prove who cannot enforce that contract.
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