Legal English

Re: made and entered into by and among

Lawyee — Mon, 12 May 2008 08:28:24 GMT

Avangi
I hate to disagree with a practicing attorney, but Non-Disclosure Agreements are serious business, and if you think you need one you'd better get it right.

I agree with you, Avangi, that's why I am doing this job. But you must confess that the words in question are of little or no use for a good contract

Re: made and entered into by and among

Lawyee — Mon, 12 May 2008 07:09:23 GMT

I must confess that I understand your problem very well. I often draft contracts which are very complex and hard to understand after the first reading. BUT it is usual that I go through the contract with the client (who asked me to draft it) and explain it to him in plain language. You, as an engineer, know that there are terms in contracts which are of purely technological content and I usualy have only a deem idea about what is going on there. I have no problem at that moment to ask the client to explain these technological matters to me. Nobody knows everything.

I want to say that if you don't clearly understand what is in the contract, you should consult it with its drafter - he is paid for that. Of course, you can ask us as well - that's free of charge

Feel free to post here all the parts of the contract that seem strange to you. Referring to the first line of the contract (that you posted), it is just a phrase with no deeper meaning. It is often replaced with a chart where parties fill their identification entries. It is of the same effect

Re: made and entered into by and among

sjhart — Mon, 12 May 2008 02:53:13 GMT

Thanks for the warning. We use an NDA for routine confidentiality matters, and a Proprietary Information Agreement when it seems possible that a relationship might result in patentable or copyrightable work. Both were drafted by well-respected Intellectual Property attorneys about 10 to 15 years ago, and have been reviewed a couple of times since. And I get to see other similar agreements drafted by other people quite often, so I believe ours are well drafted and up-to-date. But I'd be even happier if I was sure I understood exactly what the words all mean.

Often I must sit across the table from an engineer and ask them to sign an NDA or PIA; and I fear that mostly they have less of an understanding of the wording than I do. To some extent they trust that I wouldn't ask them to sign something unreasonable. I can fairly and honestly explain what it all means, except for that very first sentence.

Stephen

BTW, my father was a lawyer (what the English call a Parliamentary Draftsman I think) and my mother was a biologist, so I grew up listening to, and respecting, both legal and scientific language...and arguments.

Re: made and entered into by and among

Avangi — Mon, 12 May 2008 02:28:23 GMT

I hate to disagree with a practicing attorney, but Non-Disclosure Agreements are serious business, and if you think you need one you'd better get it right. If you're just looking for a friendly gentleman's agreement, why not just shake on it.

Have you checked for typical agreements on the net?

Respectfully, - A.

Re: made and entered into by and among

sjhart — Mon, 12 May 2008 01:30:15 GMT

So what's being said with this phrase is that the contract was written by ("drafted") and executed ("concluded"?.. any blanks filled in?) by the parties who are named. Is that right?

I can see that "made among" could mean "drafted by" and "entered into by" could mean "we filled in the blanks and signed it". But more usually the parties signing didn't actually draft much if any of the damn thing: their lawyers did. And if "completed" just means "filled in and signed" couldn't this be achieved more clearly and definitively by using a signature block including a printed name and address and other identifiers such as for example social security number?

I think probably I still don't really understand "made and entered into by and among" even though I've signed several contracts which use these words and sometimes have asked other people to sign as well.

My goal here is to have a Non-Disclosure Agreement which a typical engineer can understand. And not argue about :-)

Stephen

Re: made and entered into by and among

Lawyee — Fri, 09 May 2008 06:52:07 GMT

Let's just all admire that this phrase is a typical legalese. Lawyers use it, because it looks "lawyerish"(probably a neologism). If you want to write it in plain but still legal English, use "this contract is drafted and concluded by" or even shorter "this contract is concluded by".

We lawyer have to use these phrases in order to make the clients say: "Oh, this contract is really complex! I couldn't have done it myself." Though they, in fact, probably could

Lawyee

Re: made and entered into by and among

Avangi — Fri, 09 May 2008 01:52:02 GMT

Hi Stephen, I think you said what I meant better than I did.

If we're speaking of the U.S., I've had experience as a litigant in NH, VT, MA, and CA, and the difference in language is striking, Vermont using what sound like antique phrases and California favoring more modern constructions. Not much of it would be used as dinner conversation.

Best wishes, - A.

Edit. I don't wish to put down Vermont courts. They seem the most determined to see that everyone gets a fair shake.

Re: made and entered into by and among

sjhart — Fri, 09 May 2008 00:54:21 GMT

Thanks for the welcome and the prompt reply!

Actually, I'm not a "young new lawyer"... I'm a middle-aged scientist/engineer. English usage is a hobby interest of mine.

I didn't take your answer as facetious. But, yes, I think I did believe all the examples you gave were the same. Pretty much :-)

Now I understand that maybe they're the same, but maybe they're not, so to cover all the bases a real lawyer would use a linguistic formulation which has stood the test of time (and other lawyers) in many and varied circumstances. Okay, that's prudent, but the phrase "made and entered into by and among" sounds archaic: is the same effect achieved by other competent lawyers using plainer English? Clearly my first crack at it wasn't up to scratch.

Stephen

Re: made and entered into by and among

Avangi — Fri, 09 May 2008 00:08:35 GMT

There absolutely is, but it doesn't go beyond the meaning of the words, as would be the case in the meaning of an idiom.

In baseball, it's called "covering all the bases." You know how lawyers are! I expect a certain amount of trial and error (pun intended) has gone into the formulation of these standard expressions.

I can imagine a young new lawyer like yourself writing a contract like the one you propose, only to have it overturned by a wise old experienced lawyer who knows the English language well. If there are loopholes, they need to be closed.

Regards, - A.

Edit. Hey, I just noticed! WELCOME TO THE FORUMS ! !

Sorry if I came across as facetious. Do you truly believe than in all cases and circumstances "made by A and B" means the same as "entered into by A and B"? Or that "This agreement made by A and B" means the same as "This agreement made among A and B"? Etc. Etc. Or that any one of these is the same as "is between A and B"?

made and entered into by and among

sjhart — Thu, 08 May 2008 18:18:49 GMT

Is there special legal meaning (in the US) to the term "by and among"? Or more fully perhaps "made and entered into by and among"?

For example, does "This agreement is made and entered into by and among Party A and Party B..." mean anything different from "This agreement is between Party A and Party B..."?

Stephen