Mac Norton wrote:
Oh and as to non-repudiation and lawyers throwing that term around loosely: Most lawyers would probably tell you that, for their purposes, whatever the parties *agree* to be non-repudiation *is* non-repudiation as between *them*.
Yes.
The hard cases are the ones where there's no agreement and the law must supply a default rule, or derive a rule from the conduct of the parties. Those are the instances you have in mind, I take it. In such cases, where "course of dealing" and "course of performance" between the parties sheds little or no light, the law often looks to "trade usage." To which the work of punks, among others, may be relevant.
Yes. That is why it needs to be defined in technical terms, in order to avoid (but not forestall) overloading. From the previous discussion and hair-splitting on "prevent" I am inclined to use the definition of non-repudiation as "non-repudiation is a service that takes advance measures against a probable or possible denial of an act" if I want to be sloppy. If I want to be technically precise (but perhaps unavoidably obscure), I would continue to use "non-repudiation is the denial of a falsity." I am forwarding to you a comment by Tony Bartoletti, with the following ending: I don't think that it is worth debating whether toothpaste prevents, helps to prevent, serves to prevent, hampers, hinders, impedes or forestalls tooth decay. When theory meets the real world, some slippage will occur. and that is why I think such debates are interesting. We need to see the different sides of truth rather than believing that there is just one truth -- which is, of course, the one we have (invariably so, it seems) ;-) Cheers, Ed Gerck