If Trump Can Be Bound By and Enforce An Agreement He Was Not Aware of...

[TomCADem]

...did not authorize, did not pay for, and did not sign, could I sue to enforce an agreement with him to immediately resign that I've typed up? Sure, he does not know of the agreement. Sure, he did not authorize it. Heck, he did not even sign it.

But, I have signature line for Stoopid Idiot, which is his aka that he was meant to sign.

[ProudLib72]

1. You have one of those agreements with him too?!

I've had mine in my file drawer for over a year now, not knowing how to proceed. Perhaps we need to start a class action lawsuit.

[jberryhill]

2. That all depends

On whether he assigned to someone else the right to enter into that contract with you.

For example, you are going away for a year and you say to me, hey, I want you to look after my house. I say, sure, but I might have to hire someone to mow the lawn, make repairs, and do all sorts of whatnot to it. So, we draw up a contract, a confidential one, authorizing me to act on your behalf with the full authority to do so as if I were actually you.

With that sort of authority, then, sure, I might enter into all kinds of contracts which you don’t know jack about.

[pnwmom]

3. As I understand it, Cohen didn't sign it personally or on Trump's behalf.

He only signed it in the name of the EC LLC.

How is the EC LLC able to stand in for Trump on the personal consideration that he promised Stormy -- the release of claims he had been threatening to make against her, etc. Near the end of the document it even says that all the signatures are what makes the contract valid. And then DT didn't sign.

So Stormy got the money but she didn't get all the consideration that the agreement called for, which could only have come from Trump.

If DT really didn't know about the settlement, then what would stop DT from making good on his threats?

[jberryhill]

4. There are several flaws in what you said

First, you don’t know that Trump didn’t sign. The contract says it can be executed in what are called duplicate originals, and doesn’t require delivery. The fact that Daniels doesn’t have a copy that Trump signed is not proof that he didn’t sign. And that’s aside from the fact that a signed writing is required of the party in a contract action against whom enforcement is sought. Daniels is not seeking to enforce the contract.

Secondly, rights in contracts are assignable, and duties under contracts are delegable. You will note that the contract says it is binding on, among other things, the “assigns and designees” of the parties. Now, some duties are inherently non-delegable, notably, duties which are inherently personal. However, if a contract requires Alice to pay Bob $500, and Alice delegates that duty to Charlie, Bob cannot object to that delegation, because there is no difference between Alice’s $500 or Charlie’s $500.

Third, unless a contract provides otherwise, rights in the contract can be assigned. Vast sectors of the economy operate on that principle. In this context, that would include the right to enforce it under arbitration.

Just how do you think the debt collection business works? How do you think JG Wentworth buys people’s structures settlements? Those things work because contract rights are assignable.

A lot of contracts include specific consent provisions for assignment of rights. This one notably does not. So there’s been a lot of posturing on the whole “only DD could bring an arbitration” canard. Every damned day people assign their enforcement rights in contracts. That’s how much of the music business operates. Quite simply all that had to happen was for DD and EC to enter into a contract - not involving Daniels - under which DD assigned the rights to enforcement and damages to EC. That too would be a confidential contract. But all that would have to be shown to the arbitrator is the contract signed by Daniels, and an assignment of rights in the contract from DD to EC, which is likely why the arbitrator would have proceeded on the enforcement complaint at the behest of EC.

Now, unlike the right to enforce the contract and collect damages, which are assignable, the duty not to divulge the confidential information is not delegable, because it is inherently a personal duty.

Did you ever sign, for example, a loan agreement? It says “pnwmom has to pay X bank $500 a month until the balance is paid off”. Well, if Y bank buys that loan from X bank, and tells you to pay them instead, I’m sorry to tell you that your argument of “but my contract says I have to pay X bank, not Y bank” isn’t going to get you very far. You can point at the contract and say “it says right here that I’m supposed to pay X bank” all day long. It’s a silly argument. X bank sold that loan to Y bank. You now owe Y bank and that’s all there is to it.

Alternatively, if I assume your debts, show up at the bank and say “I’m here to pay off that loan” they aren’t going to say “oh no, we can only accept that money from pnwmom”.

[pnwmom]

5. Daniel's attorney says Trump didn't sign it. Do you think he's lying?

I think it's likely Trump didn't sign any copy, because he wanted the deniability. Cohen and Trump are still saying Trump didn't know anything about it.

Do you think the personal damage claims that DT was supposed to be releasing are among delegable rights? Can some assignee assure Daniels that DT will not be suing her in the future for injuries he had been claiming against her? That is what I have been talking about -- not about who can bring an arbitration, or about non-personal issues.

What happens to the contract if part of the consideration isn't given -- the part where DT releases his right to sue her for her past actions? What if she would only have signed the contract if she knew she was getting that assurance?

These are the parts of the agreement I'm wondering about.

2.5 The parties agree that the claims released include but are not limited to DD’s claims against PP as having allowed, whether intentionally, unintentionally, or negligently, anyone else other than those listed in Section 4.2 herein below to become aware of the existence of and content of the property, and to PP’s having allegedly engaged in efforts to disclose, disseminate, and/or commercially exploit the Images, and/or Property, and/or Confidential Information, and any harm suffered by DD therefrom.

2.6 These recitals are essential, integral, and material terms of this Agreement, and this Agreement shall be construed with respect thereto. . . .

4.3 (a) Representations and Warranties and Agreements by DD. The following agreements, warranties, and representations are made by DD as material inducements to PP to enter into this agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon:

6.0 Mutual releases. Except for the Rights and obligations of the Parties set forth in this agreement, DD, . . . absolutely and forever releases and discharges PP. . . from any and all claims . . . from the beginning of time to the effective date of this agreement.

“8.6: Each of the parties represents and warrants . . . that this agreement, when signed by all parties, is a valid and binding agreement, enforceable in accordance with its terms.”

[jberryhill]

9. Let me answer your subject line question first

Last edited Fri Mar 9, 2018, 10:38 AM - Edit history (1)

You pose a false dichotomy. In point of fact, her attorney would not know if Trump signed another copy. We all agree that Trump did not sign the copy filed with the Complaint. But the agreement by its own terms provides for other copies which can also be signed. Lawyers do this ALL OF THE TIME, particularly now that most agreements are reduced to .pdf and then emailed around. Very rarely these days do I end up with a single .pdf that has everyone's signatures on it. One party signs theirs in the UK, another in the US, another in China, etc.. They all sign their copy. For enforcement purposes, I will usually require mutual execution and delivery by such-and-such a date, so that everyone has at least one copy signed by each other party.

What's more salient to the point above is what is NOT in this contract, which you usually find in a lot of contracts. Normally, there will be an assignment and delegation clause which specifies the terms under which rights can be assigned or duties delegated. Again, normally, you expect to find that the assignment or delegation clause requires mutual written consent. This one does not, so it reverts to default contract law under which assignable rights can be assigned and delegable duties can be delegated.

I'll touch on your points, but understand that this is not a Contracts course. I could do an hour on each of those clauses.

2.5 says that the subject matter of the agreement are any claims DD might have against PP for releasing the information. Again, claims can be assigned. In fact, that is required in, for example, your auto insurance contract. People buy and sell their legal claims every day. You can sell your right to sue someone under any contract you have, provided the contract does not prohibit it.

2.6 is a bog standard material terms clause.

4.3 is a reps and warranties clause. It means that the parties have entered into the contract on the basis of the reps and warranties stated therein, and that if any of the reps and warranties were false, then one can also sue on any of the reps and warranties having been false. For example, I sell you a horse for $100 and tell you the horse is in good shape. You pay me $100 under a contract which states it is the full agreement. You find out the horse is lame. Did I violate the contract? In one sense, no, because it was a horse, and we exchanged the money for the horse. The contract was performed from that perspective. I did not fail to perform the contract. What I DID do is to breach a warranty IN the contract. So, it is ordinary in written contract to include specific reps and warranties to say - this contract is violated because the stated reps and warranties, which were specific inducements to enter into the contract, were not true and you relied on them as a part of making the contract.

6.0 is a standard release clause. I ran a redlight and hit your car. You and I agree to settle that incident. You might have ten different claims under ten different legal theories against me arising out of that incident. Your car was mashed up, you were late to your audition and didn't get the part you wanted, you suffered a broken finger, etc.. These kinds of clauses avoid slicing and dicing legal claims arising out of a set of circumstances, to avoid someone coming up with a new claim or theory based on the operative events. If I offer you $10,000 to settle the claim, we are not going to part out the car, the hypothetical claim you might have gotten the part in the movie, the broken finger etc. Also, I might be the guy who stole your lawnmower last week - whatever. The point of this clause is that in exchange for the $10,000, we are done and done - regardless of whether you go to the shop next week after we sign and the mechanic tells you that you need a bunch of repairs because the accident dislodged some part of the engine. Doesn't matter. You released me from all claims arising from the accident. We can go further, as this one does, and include a release of all known and unknown claims you might have against me, and that would include you later finding out that I was the guy who stole your lawnmower.

8.6 says that the parties admit it is a valid agreement when signed by all parties. And here you are ignoring the fact that the contract ALSO expressly says that there can be multiple copies signed in counterpart, and there is no obligation as to when it can be signed, or whether a signatory is required to deliver a signed copy.

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I see a bunch of issues with the claim stated in the civil complaint and, no, her lawyer is not going to point those out on the TeeVee machine. At the end of the day, so what? What's it to me, you, or anyone else whether or not she has the thing invalidated, really?

The filing has provided us with strong evidence that, good golly, Donald Trump was banging Stormy Daniels in 2005/6 or whatever. I'm sure they were both heartbroken when their romance ended, and she misses his tender embrace. She could have told us all about it back in 2016. She chose not to. Instead, she hired Keith Davidson, an attorney who specializes in brokering sex tapes, evidence of infidelity, etc., and gets money for those sorts of things that people consider to be a form of blackmail, and she got $130,000 to agree not to talk about it. It was late October and in a few days Trump was going to lose the election, so everyone assumed. Now, she has seller's remorse, and having accepted the $130,000 wants to make a career out of all the things she agreed to forego in exchange for that $130,000. She's not acting out of any sense of civic interest. But as far as we in the gallery are concerned, the way that this was filed (and not under seal as one would normally expect in enforcement of a confidential agreement), provides us with public amusement and pretty strong evidence that, indeed, Donald Trump - who is a thrice married serial adulterer - shockingly remained a serial adulterer in his third marriage. Whoopee! Amazingly, yes, it appears that Donald Trump was banging yet another woman while married.

But I don't get the emotional investment in Daniels or whether the claim defined in the complaint does or does not hold water. What do we get out of it either way?

What IS interesting is whether there was an FEC violation. What is thoroughly not interesting is whether Daniels can get out from under the agreement she voluntarily made, so that she can make even more money as "the porn star who banged Trump".

But, since the contract is invalid, as I keep hearing on the TeeVee machine, what has her lawyer said about any attempt to refund the $130,000 she received under this "invalid contract"? Did he mention that? Or is the idea here that the contract is "invalid" but she gets to keep the $130,000?

[pnwmom]

13. We know that Donald Trump did NOT sign the contract, IF WE BELIEVE DONALD TRUMP.

I agree that that's dicey.

Thanks for the rest of this -- I'm going to finish it later.

[jberryhill]

10. I missed this question

And, frankly, I don't understand this question:

What happens to the contract if part of the consideration isn't given -- the part where DT releases his right to sue her for her past actions? What if she would only have signed the contract if she knew she was getting that assurance?

He hasn't sued her for anything, so I don't understand the question.

The way it looks to me is that Trump assigned his enforcement right to Cohen, and Cohen proceeded to arbitration under the contract. If you are trying to say that the release extends to a waiver of rights to enforce the contract, that's kind of silly. The entire point of a contract is to provide a reason to sue someone (or, arbitrate if that's what the contract says) if they violate the contract.

And, one more thing worth mentioning. This whole "I was coerced by threats into signing the statement in January" or whenever it was. The contract specifically provides that she will undertake such further actions or sign such further instruments as may be necessary to effectuate the purposes of the contract. She had been engaging in 'teaser' types of disclosures, and one need not doubt that the "threats" and "coercion" involved in getting her to sign the additional statements were most likely threats to enforce the terms of this contract to the tune of a million dollars a pop.

If Cohen approached her and said, unless you sign this statement, then we are going to arbitration on the contract, that's not some sort of "coercion". That is simply enforcing the terms of the contract she willingly signed.

Yeah, guess what, if someone doesn't show up for work, their employer will "coerce" them to show up by "threatening" to fire them or not to pay them, because that's what the employment contract is about. Enforcing a "further acts" clause of an existing contract is not a coercive threat.

[Sophia4]

6. She makes a good enough case to justify the filing of her complaint.

And with that filing, she released a copy of the contract.

The rest is noise.

[jberryhill]

8. That's right

She is neither a victim nor a heroine.

[Kirk Lover]

11. Should he not be disbarred? What lawyer would PAY out of his own pocket for his client and then

not tell him a thing about it.

The contract terms you describe above...would that also allow for the lawyer to pay the fees out of his own pocket for the client?

[jberryhill]

12. Would need more facts

Long story short - Cohen will eventually be disbarred, but not for this.

The rule about lawyers paying fees on behalf of clients is about paying them in anticipation of litigation. The idea is to prevent lawyers from essentially cooking up lawsuits that wouldn't otherwise get filed, or obtaining undue leverage over the client. There was no pending or contemplated litigation in the negotiation of the Hush Contract, and I can't see where anyone thinks the rule applies. But, yeah, someone said so on the TeeVee machine, so...

But it's pretty clear that EC LLC was a party to the contract. It is also clear that Trump could have entered into yet another confidential agreement where Trump assigned rights and delegated duties to EC in connection with formation and performance of the contract. From there, it gets messy, but since nobody is under oath on statements they make to the press, then more facts would need to be established to get anywhere near that particular rule of practice.

OMG, I paid for my client's lunch at a Smashburger during his deposition and forgot to bill him for it. Meh.

[Angry Dragon]

7. How many porn stars did Donnie bed??