Yep, I’m thinking about the NDA agreement between Stormy Daniels/Peggy Peterson/Stephanie Clifford and David Dennison/Donald Trump.
How is a contract between two made up names enforceable? (I’m not getting into the part where no one signed on the David Dennison dotted line.) I don’t understand how you can sign 2 random names on a piece of paper, and have it mean anything. Peggy Peterson didn’t promise to not talk. David Dennison didn’t promise to pay money. If there has to be real names attached to the agreement some how, then why bother with the pseudonyms?
A written “agreement” is not actually an agreement, it’s a record of the real agreement, which is in the minds of the parties. The written record is there to keep both parties honest, and for evidence that the in-their-minds agreement exists. So it’s a case of sketchy evidence, not necessarily a case of no agreement.
Looking around very quickly, I’m reading that there’s a separate document that explains who is who, but the names are redacted in the NDA. The big issue here is that Donald Trump (or any of his pseudonyms) never signed the NDA. On the line where it was supposed to be signed, “DD” is typed under the line, but the signature simply says “EC”. It’s the initials of Essential Consulting, Trump’s lawyer’s company.
So, the question is, without Donald Trump or David Dennison’s signature, is it legally binding?
Contracts routinely give proper names to the parties that reference them, which are made up for purposes of the contract. The key is to tie the proper name with the actual person; here, it was apparently done via addendum. But in a typical contract, it’s still done, albeit more transparently
John Smith (the “Homeowner”) sues John Jones (the “Nipple Tickler”) and alleges that,
On or about 1/1/18, Homeowner had contracted for servces of Nipple Tickler, as one does…
If they were smart (hahahaha!!!) a clause in the contract should have authorized digital or facsimile signatures as real signatures.
ETA: That way, Cohen could have added Trump’s signature if, or when, he needed to.
Very few contracts actually need to be in writing. There are good reasons for putting a contract in writing - clarity as to the terms the parties have agreed, ease of proving what was agreed if it is later disputed, etc - but in most circumstances an oral contract is perfectly valid. And you can have contracts which are partly oral, and partly in writing. And contracts made orally, of which a written note or memorandum is made either at the same time, or later. Etc, etc.
So, is this contract enforceable? It’s not, SFAIK, among the limited class of contracts that need to be in writing, even though part of it is in writing. Enforcing it would come down to proving that, at the time the parties entered into it, they had a shared understanding as to who was meant by “Peggy Peterson” and who was meant by “David Dennison”. Perhaps you’d do that by presenting an exchange of emails that made the shared understanding very clear. Or people would give evidence about conversations they had had at the time. Or whatever. Enforcing the contract becomes an evidentiary problem - can we prove what was agreed? - but there is no fundamental legal objection.
And even if this contract was covered by the Statute of Frauds, the part performance by Trump/Cohens makes the contract legal (i.e. the payment and acceptance of the money). Promissory and/or equitable estoppel, and unjust enrichment also prohibits Stormy Daniels from complaining that the contract is not valid because Trump did not sign. She took the money. This is first year contracts stuff.
Meaning, for a non-lawyer, that they both proved by their actions that they believed in the contract, and from the legal point of view that settles it?
In a sense, yes. That’s not how judges or lawyers would say it, though.
I guess the best layman’s statement would be “Even if the contract is technically invalid because of the lack of Trump’s signature, the payment and the conduct of each party evidences the meeting of the minds necessary for a contract. In addition, it would be unfair for Stormy Daniels to keep the money and still squeal.”
Imagine that you hire me to paint your house. You sign the contract but fail to notice that I didn’t. You pay me $2,500. I say neener, neener, I didn’t sign. Well, a judge is going to ask what I thought the $2,500 was for.
A contract is an agreement between two people. It’s not the written document that is commonly referred to as a “contract.” In the law that written document is merely a memorialization, or evidence of a contract. Some contracts must be memorialized in writing and executed (signed), but that’s a different issue.
If you intend to enter into an agreement—accept its benefits and be bound by its requirements—it doesn’t matter what you call yourself. Similarly, if you sign a contract, it doesn’t matter what marks you make, so long as you intend for whatever marking it is to serve as your signature.
I pointed this out in the other thread, but I go by the name “Rick” (obviously) and usually sign my name that way, or sometimes “R. (lastname).” Of course, my legal first name is neither Rick nor R.; it’s Richard. Nonetheless, every contract I have ever entered into and signed as Rick is very binding indeed. “Rick” is no more my actual legal name than “David Dennison” or “Black Panther” or “Parrot Boy” but no judge in the world would let me get away with saying “that contract doesn’t count 'cause my name is really Richard.” Contracts are agreements, not signatures.
And anyone who’d ever been sent a letter from DT, or had a signed contract with him, or was able to download it from the internet could have altered the document in any way they liked then slapped on a gif afterwards.
