ALSBTALK:



Any third party to a contract (i.e, intended v. incidental; creditor v. donee), under the correct circumstances, —can— vest.  Few muster the correct circumstances.



Importantly, a party known by all parties to be using both an agent and a different name is not a third party to the contract.



Uncertainty of damage magnitude is central to the public policy permitting liquidated damages contract clauses (e.g., anticipatory accord and satisfaction).  Of less significance, but not of no concern to public policy, is uncertainty as to damages being owed at all.  The latter is sufficient as long as the potential of owing damages is a colorable claim; especially so if magnitude also is uncertain.



Daniels was represented by counsel.  Ineffective counsel claims are difficult in criminal defendant contexts even with the margin of error (i.e., mere reasonable doubt) being razor thin.  In a civil context ineffective counsel claims are extraordinarily difficult; more than proportionally difficult given the margin if error.  A clear and convincing evidence standard would be the most likely civil standard for ineffective counsel.  An adequately competent counsel who is fatally conflicted, however, is a horse if a different color.



Michael J O'Hara:  from phone





> On Apr 6, 2018, at 9:36 AM, Lee Reed <[log in to unmask]> wrote:

> 

> I'm still hung up on the contract between Stephanie Clifford and Michael Cohen and/or Donald Trump, and I would appreciate your comments.

> 

> It still seems pretty clear to me that the liquidated damages clause in the contract does not anticipate actual, but uncertain, financial damages and therefore is a penalty and cannot be enforced. Although my research is desultory at best (and I don't know about California), there seem to be plenty of cases out there that state even if the parties agree and specify to penalty damages that such are not enforceable. 

> 

> The latest issue raised seems to be that Donald Trump is not a party to the contract.The talking head lawyers on television all seem to be criminal or constitutional lawyers and know virtually nothing about business law, but even if he were not considered a "party" to the contract, isn't Donald Trump a third-party beneficiary of the contract and thus can enforce it? 

> 

> Is contract law no longer important to contracts? I realize there is a certain irony here since I once published an article in the JLSE titled "King Contract Wears No Clothes," but, hey, I was referring in the article to teaching business students contract law and this contract is not really a business contract.

> 

> Help!