I reproduce Greg's mail on this list earlier:

<quote>
Some important basic legal points:  

1.  An MOU is a contract.  It may leave more to the imagination than a longer, more detailed document, but it is a contract.  Proposing an MOU does nothing to move us away from having a contract.  Generally, all you need to have a contract between two parties (more on that in a moment), is an offer, the acceptance of that offer, some form of "consideration" (quid pro quo or "this for that") and the intent to enter into a binding agreement.  If you have these four things, you will have an enforceable contract.  This is of course very high level, and there are many nuances, qualifications, details, exceptions, etc. (one could spend a lifetime on the subject, if one wanted), but these are the basics.  On the other hand, if you don't have these things, you don't have a contract, and you have nothing that binds the parties to perform their duties and obligations and nothing that can be enforced -- a party can fail to perform and walk away without consequences (as a legal matter).  Again, these are the basic concepts.  So -- if you want something that is not a contract, what you end up with is something that is not a promise and that can't be enforced if a party fails to perform.  And why would you want that here?

2.  Getting back to the concept of "parties" to a contract: only "natural persons" (that is, people) and legal entities can enter into contracts.  Corporations and partnerships are legal entities; communities and committees are not legal entities.  Therefore, communities and committees cannot enter into contracts.  A legal entity of some sort is needed if a contract is to be entered into.
</quote>

On Mon, Dec 1, 2014 at 10:38 PM, Guru Acharya <gurcharya@gmail.com> wrote:
Bertrand,

1) About W3C
W3C enters MoUs using its host organisations (MIT,ERCIM and Keio) as legal vehicles. See for example http://www.w3.org/2004/05/W3C-OMA-Agreement-FINAL.html
I am of the opinion that MoUs that W3C enters without using host organisations as legal vehicles will not be legally enforceable.

2) About IETF
Substantial concerns were raised about the IETF MoU (as proposed) not being legally enforceable.
See www.ietf.org/mail-archive/web/ianaplan/current/msg01370.html

Greg, in another mail, had highlighted the essential components for any MoU/SLA/etc to amount to a enforceable contract. I believe both parties being legal entities (or at least fictionally treated so by law) is a necessary criteria.

One way of enforcing a MoU between GNSO (as an internal structure of ICANN) and IANA (as an internal division of ICANN) is that the MoU can be given sanctity through ICANN by-laws. Unfortunately, by-laws can easily be changed raising serious accountability issues.


On Mon, Dec 1, 2014 at 9:58 PM, Bertrand de La Chapelle <bdelachapelle@gmail.com> wrote:
I am afraid this is not that clear. 

From what I have been told by someone knowledgeable, the IETF is not per se incorporated, and the MoU was signed by the President of ICANN (a legal entity) and the Chairs of the IETF and the Internet Architecture Board (neither of which is a legal entity). It was not through ISOC in that case, although ISOC does provide the IETF a lot of support and contracting capacity in other areas. 

In any case, my question is a more general one. Is incorporation required to "contract"?

If this is really required, how did the W3C manage to organize itself during many years, simply by having a series of "host agreements" with three universities?

I am a bit stubborn, but I am afraid we are not answering this in full detail. 

B.





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On Mon, Dec 1, 2014 at 5:16 PM, Milton L Mueller <mueller@syr.edu> wrote:

Bertrand,

I think your question has already been answered

 

1)      Is incorporation required to "contract"? Given that the IETF seems to have an MoU with ICANN (among other arrangements with other "entities"), I would suppose that the answer is no. Can someone clarify this important point?

 

MM: Yes, it is. IETF contracts via ISOC.

 



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