[License-discuss] End of CAL discussion? Paging Arthur Brock.

Wed Jul 24 21:38:00 UTC 2019

"Conditions" is the proper term of art for qualifications that are placed
on licensee's obligations/covenants and/or licensor's grant of right(a)
(i.e. covenant not to sue for infringement) in a license agreement. But CAL
has no conditions. Nor has it any scope limitations, BTW. CAL's wording
"You agree that either the Licensor or a Recipient (as an intended
third-party beneficiary) may enforce these conditions via specific
performance" confounds conditions with covenants.

US Federal Circuit showed utter incompetence in Jacobsen vs. Katzer, don't
try to capitalize on that silliness, please.

* * *

https://naturez-vous.com/conditions-in-contracts-definition-forms/

"A condition is an act or event that affects a party’s contractual duty. It
is a qualification that is placed on an obligation. For instance, let’s say
that I promise my brother that I’ll wash the dog if he’ll clean my room.
This agreement has a condition. I’m not obligated to wash the dog unless my
brother cleans my room.

There are three different forms of conditions. These conditions are
categorized by the point in time that the condition must occur. There are
conditions that must occur:

Before
During, or
After the contractual duty

Let’s look at each of these forms of conditions.

Condition Precedent

Sometimes a contract will require that a certain act or event occur before
some other act or event. This form of condition is known as a condition
precedent. A condition precedent is something that must occur before a
party is obligated under the contract. The condition precedes the party’s
obligation.

This type of condition is common. Contracts often stipulate that a party’s
obligation occurs once another act or event occurs. For example, let’s take
a look at my oral agreement with my brother. I promise my brother that I’ll
wash the dog if he’ll clean my room. This agreement has a condition
precedent. I’m not obligated to wash the dog unless my brother cleans my
room. My brother must clean my room before I’m obligated to wash the dog.
The clean room is a condition precedent. Once my brother cleans my room,
I’m obligated to wash the dog. Until then, I have no obligation.

Condition Concurrent

The second form of contract condition is one that must occur at the same
time as some other act or event. This is known as a condition concurrent. A
condition concurrent is something that must occur simultaneously with
another condition. Each party’s obligation acts as a condition precedent
for the other.

When there is a condition concurrent, the parties’ obligations are mutually
dependent on each other. Neither party has an obligation until the other
party performs his or her obligation. For example, let’s say that I make an
oral agreement with my brother. As long as he cleans my room every week,
I’ll wash the dog every week. This is a condition concurrent because we are
mutually obligated to one another and our obligations are mutually
dependent on each other. As long as he’s cleaning my room, I’m obligated to
wash the dog. As long as I’m washing the dog, he’s obligated to clean my
room.

This is a common contract condition in the sale of goods or services. When
I buy a new shirt in a store, I’m obligated to pay the storekeeper and
she’s obligated to give me the shirt. Or, if I purchase the shirt online,
I’m obligated to send payment to the store and the store is obligated to
send me the shirt. The obligations are concurrently contingent on one
another.

Condition Subsequent

The third form of contract condition is one that occurs after some other
act or event. This is known as a condition subsequent. A condition
subsequent is something that occurs after another condition. This type of
condition terminates the parties’ obligations and ends the contract.

Many business contracts contain conditions subsequent. Often, the condition
is included in a contract clause that outlines what happens when, or if, a
certain act or event occurs. A condition subsequent will normally be an act
or event that occurs during the duration of the contract.

For example, let’s look at my oral agreement with my brother. Let’s say
that we agree that he’ll clean my room every week, and I’ll wash the dog
every week, until our mom reassigns our chores. This is a condition
subsequent because our obligations to one another will terminate once our
mom reassigns our chores. If, next month, I’m assigned to wash the dog
every week anyway, then I’m no longer obligated to my brother.

This is a common condition in business contracts, such as supply contracts.
For example, say Bridget’s Bread Company agrees to buy all of its flour
from Fred’s Flour Supply. This contract contains a clause saying that Fred
is no longer obligated to supply flour to Bridget if she closes, sells, or
moves her bread company. This is a condition subsequent and terminates the
parties’ obligations to one another.

Lesson Summary

Let’s review. Many business contracts contain conditions. The contract
conditions determine the parties’ obligations. A condition is an act or
event that affects a party’s contractual duty. A condition is a
qualification that is placed on an obligation. There are three different
forms of conditions. These are:

Conditions precedent
Conditions concurrent, and
Conditions subsequent

A condition precedent is something that must occur before a party is
obligated under the contract. The condition precedes the party’s
obligation. A condition concurrent is something that must occur
simultaneously with another condition. Each party’s obligation acts as a
condition precedent for the other. A condition subsequent is something that
occurs after another condition. This type of condition terminates the
parties’ obligations and ends the contract.

Am Mi., 24. Juli 2019 um 19:49 Uhr schrieb VanL <van.lindberg at gmail.com>:

> "Conditions" is the proper term of art for a license.
>
> Thanks,
> Van
>
> __________________________
> Van Lindberg
> van.lindberg at gmail.com
> m: 214.364.7985
>
> On Wed, Jul 24, 2019, 8:49 AM Alexander Terekhov <herr.alter at gmail.com>
> wrote:
>
>> It would be really nice if CAL.next would stop calling unconditional
>> covenants/duties/obligations "conditions".
>>
>> https://medium.com/policy/medium-terms-of-service-9db0094a1e0f
>>
>> "...in a court located in San Francisco, California."
>>
>>
>> https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=2.&part=1.&chapter=3.&article=
>>
>>
>> CHAPTER 3. Conditional Obligations [1434 - 1442]  ( Chapter 3 enacted
>> 1872. )
>>
>> 1434.  An obligation is conditional, when the rights or duties of any
>> party thereto depend upon the occurrence of an uncertain event.
>> (Enacted 1872.)
>>
>> 1435.  Conditions may be precedent, concurrent, or subsequent.
>> (Enacted 1872.)
>>
>> 1436.  A condition precedent is one which is to be performed before some
>> right dependent thereon accrues, or some act dependent thereon is performed.
>> (Enacted 1872.)
>>
>> 1437.  Conditions concurrent are those which are mutually dependent, and
>> are to be performed at the same time.
>> (Enacted 1872.)
>>
>> 1438.  A condition subsequent is one referring to a future event, upon
>> the happening of which the obligation becomes no longer binding upon the
>> other party, if he chooses to avail himself of the condition.
>> (Enacted 1872.)
>>
>> 1439.  Before any party to an obligation can require another party to
>> perform any act under it, he must fulfill all conditions precedent thereto
>> imposed upon himself; and must be able and offer to fulfill all conditions
>> concurrent so imposed upon him on the like fulfillment by the other party,
>> except as provided by the next section.
>> (Enacted 1872.)
>>
>> 1440.  If a party to an obligation gives notice to another, before the
>> latter is in default, that he will not perform the same upon his part, and
>> does not retract such notice before the time at which performance upon his
>> part is due, such other party is entitled to enforce the obligation without
>> previously performing or offering to perform any conditions upon his part
>> in favor of the former party.
>> (Enacted 1872.)
>>
>> 1441.  A condition in a contract, the fulfillment of which is impossible
>> or unlawful, within the meaning of the Article on the Object of Contracts,
>> or which is repugnant to the nature of the interest created by the
>> contract, is void.
>> (Enacted 1872.)
>>
>> 1442.  A condition involving a forfeiture must be strictly interpreted
>> against the party for whose benefit it is created.
>> (Enacted 1872.)
>>
>> Am Mi., 24. Juli 2019 um 03:54 Uhr schrieb VanL <van.lindberg at gmail.com>:
>>
>>> Various individuals at my client, including Arthur, are reviewing a
>>> second draft of the CAL before it is widely shared. When they ate done with
>>> their review, the new draft will be posted here.
>>>
>>> As for Arthur, it is his prerogative to join or not join any discussion
>>> he would like. He is definitely aware of the discussions here.
>>>
>>> Also, I would note that while my day job is as a lawyer, I understand
>>> the technical details underlying the things I discuss.
>>>
>>> Thanks,
>>> Van
>>>
>>>
>>>
>>> __________________________
>>> Van Lindberg
>>> van.lindberg at gmail.com
>>> m: 214.364.7985
>>>
>>> On Tue, Jul 23, 2019, 2:37 PM Bruce Perens via License-discuss <
>>> license-discuss at lists.opensource.org> wrote:
>>>
>>>> Are we finished discussing the Cryptographic Autonomy License?
>>>>
>>>> I am disappointed that Arthur Brock did not step up to explain his
>>>> license and left all of the representation to Van. Van is not really an
>>>> expert in the technical needs that motivated Arthur to ask him to work on
>>>> that license, and in my private correspondence with Arthur, it seemed he
>>>> had something to say.
>>>>
>>>> Van, this is not a court of law and I don't think there is a downside
>>>> in having the client talk with us. Could you invite him to?
>>>>
>>>>     Thanks
>>>>
>>>>     Bruce
>>>> _______________________________________________
>>>> License-discuss mailing list
>>>> License-discuss at lists.opensource.org
>>>>
>>>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>>>>
>>> _______________________________________________
>>> License-discuss mailing list
>>> License-discuss at lists.opensource.org
>>>
>>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>>>
>> _______________________________________________
>> License-discuss mailing list
>> License-discuss at lists.opensource.org
>>
>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>>
> _______________________________________________
> License-discuss mailing list
> License-discuss at lists.opensource.org
>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20190724/d0365878/attachment-0001.html>