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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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