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Subject: RE: [legalxml-econtracts] Thinking about information models


I like the classification that Sergio identified

>- "contract mechanics"
>- "exception handling"
>- limitations of liability
>- choice of law and jurisdiction

Professor Reed's "contract mechanics" correlates with what I have called "Terms"
of a contract (ExecutionTerms, PerformanceTerms, and SettlementTerms). When I
suggested those three term categories (which directly correspond to the
lifecycle phases of a contract), I was equally aware of RemedyTerms (which would
include governing law and jurisdiction information), and LiabilityTerms, but
didn't mention them because I believed that they are subordinate to the other
three, and therefore deferred discussing them to a time when we drilled-down
into those terms. But given Sergio's list, I'd like to ask if my understanding
is correct, that remedies and liabilities are subordinate to actions
contemplated during execution, performance, or settlement of a contract, or
whether they are siblings as Sergio suggests.

As noted earlier, those contemplated "actions" are themselves defined by zero+
<DeliveryTerm> and <PaymentTerm> elements. Now, I have been giving thought to
the different kinds of goods contemplated to be delivered. When the goods are
physical goods or are services, that's easy enough to do. But if the "goods" are
legal rights, such as defined within a lease or an options contract, then these
should be equally represented as a "deliverable" good .... so I have been
working on how to do that.

Sergio raised the issue of typing a Section/Clause/Para. I am concerned that we
may be typing the wrong thing - I think contract terms are (sub-)typed with
legal qualifications, not the containers for the terms. Types for clauses seem
more effective should they apply to whether it is an AutoNumberedClause, an
OptionalClause, an EditableClause, an OpenEndedClause, and so on -- all flags to
indicate how the clause is to be constructed, formatted, modified, etc., by the
drafter of and/or party to the contract. At the same time, a
Section/Clause/Paragraph may be of a "topic" -- these are not "types" though for
the text container.

<Clause>
	<Type><Name><en>Optional Clause</en></Name></Type>
	<Topic><en>Non-repudiation Terms</en></Topic>
	<Caption><en>Non-repudiation</en></Caption>
	<Body><en/></Body>
</Clause>

But I do agree completely with Sergio's thrust that a contract can be created
that has no structure -- no sections/clauses/paras -- and only Terms that have
been assembled based upon what is contemplated to be "delivered" by the contract
(such as Confidentiality, IntellectualProperty -- his examples).... in my
lexicon, the result is an ElectronicContract, a constrained sub-type of a
LegalContract. Given a set of such contract terms, it wouldn't be too difficult
to auto-generate a presentation (a structure) in a manner suitable for its
analog acceptance and execution. Automated negotiations of course would operate
solely on the basis of the set of terms defined in the contract, ignoring
completely the existence of sections/clauses/paras.

John McClure



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