Why misleading to describe Bills of Lading as &quot;negotiable&quot;? Why &quot;a little misleadingly&quot;? I do not know what is misleading. Documentary intangibles are things in action where the documents with which they are associated are so identified with the underlying obligation that transfer of the document effects a transfer of the obligation. For example, in what are called ‘documentary sales’ of goods, the sale goods will be in the physical possession of a carrier in transit to the buyer and consequently inaccessible to either the buyer or the seller. Documents called bills of lading are used, which are regarded as documents of title to the goods identified in them, so that typically the seller has an obligation to tender a bill of lading to the buyer rather than the goods, and the buyer must meet his payment obligation by tendering the purchase price against receipt of the documents. Thus, if it is transferable (known a little misleadingly as ‘negotiable’), a bill of lading can be bought and sold as if it were the goods themselves, since title to the document is recognized as title to the goods.8 8 In fact this is only a possessory title, since the bill only embodies a right to possess the goods. Lee Roach, Commercial Law 2019 3 edn, page 23.
Because transferable is not the same as negotiable Most property is transferable. That is the owner of the property can legally transfer ownership to someone else (by contract, deed, or gift). This may require various degrees of formality: transfers of land must be in writing, transfers of motor vehicles usually require a change to a government register, transfers of a can of soft drink require no formality. Bills of landing serve to formalize the ownership of goods in transit and are so ubiquitous that the transfer of one is the transfer of the other. But that doesn’t make them negotiable. For normal goods, a person cannot pass on better title then they themselves possess. So, if I steal something or acquire it by fraud or otherwise dishonesty, I don’t own it. If I sell it to you, you don’t own it either even though you are a possessor in good faith (I, as the thief am a possessor in bad faith). The actual owner can recover the goods from whoever possesses them even if that person legitimately acquired them. Negotiable instruments are a special kind of transferable property where the mere possession of them (in good faith) makes you the owner of them. The most familiar type of negotiable property is cash. If I rob a bank and use that cash to legitimately buy something from you (and you don’t know the cash is stolen) then you own the cash. The original owner can go after me but they can’t come after you.
Declaratory judgments clarifying the meaning of a written instrument such as condominium governing documents are possible, but only when there is a bona fide dispute between parties who have personal economic interests in having the issue resolved. For example, if an owner is seeking reimbursement for expenses incurred from the board, and the board cannot agree regarding what is required of it, the board could bring an action naming the owner as a defendant for a declaratory judgment determining what the governing documents require it to do in that situation.
Short Answer It depends on the totality of the facts and circumstances. But based on your description, this approach is likely problematic and might not withstand judicial scrutiny. Explanation Plaintiffs can attack this behavior as a sham transaction. Court could find this to be a fraudulent conveyance. and provide relief via clawback order. Badges of Fraud include: (Source: Wikipedia) Becoming insolvent because of the transfer; Lack or inadequacy of consideration; Family, or insider relationship among parties; The retention of possession, benefits or use of property in question; The existence of the threat of litigation; The financial situation of the debtor at the time of transfer or after transfer; The existence or a cumulative effect of a series of transactions after the onset of debtor’s financial difficulties; The general chronology of events; The secrecy of the transaction in question; and Deviation from the usual method or course of business.
In the real world, the contract could not be enforced, as being unconscionable. See Williams v. Walker-Thomas Furniture Company, 350 F.2d 445. This, from the ruling, seems particularly applicable to TOS conditions: Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices
They have subtle differences. Starting with the Oxford Dictionary definitions (using the one most appropriate for a legal context): clause. 2.a particular and separate article, stipulation, or proviso in a treaty, bill, or contract. A clause is a self-contained concept within the written contract; it may have a number of subclauses. It may reference other clauses but ideally it can be read and acted on on its own. Typical contracts will contain clauses on payment, time, termination, scope etc. It is a feature of the drafting of the contract document. provision 3.a condition or requirement in a legal document: &quot;the first private prosecution under the provisions of the 1989 Water Act&quot; A provision is any condition (q.v.) or stipulation of things to be done or not be done within the contract. A provision may correspond with a clause, may span several clauses or be contained wholly within a subclause. It is a feature of the contract itself: verbal contracts will have provisions but they will not have clauses. condition 3.a state of affairs that must exist or be brought about before something else is possible or permitted: &quot;for a member to borrow money, three conditions have to be met&quot; A condition is a set of circumstances that must arise before another action can occur. There can be a &quot;condition precedent&quot; which means the condition must be satisfied before there is a contract. There can (will) also be conditions within the contract, for example, there will be conditions that must be satisfied before payment is made (like issuing an invoice). Conditions are a creature of the contract not the drafting. term 4.(terms) conditions under which an action may be undertaken or agreement reached; stipulated or agreed requirements: &quot;their solicitors had agreed terms&quot; (I don't like this definition much but it is the best they had.) A term is a provision (q.v.) in the contract for which one of the possible remedies for breach is termination of the contract by the innocent party . A provision where termination is not an available remedy is a warranty.
Caveat Keep in mind that words do not have uniform definitions for all times and places and contexts. Words can have different meanings in particular contexts and can be defined in a contract or statute to have a meaning different from the common meaning. "Person" Usually Includes Entities Of Any Kind This said, usually the term "person" in the law refers to any human being and any trust, estate or entity that is capable of suing and being sued and entering into contracts. An "entity" in this sense would often include partnerships, limited liability companies, corporations, non-profit associations (whether or not incorporated), business trusts, joint ventures, local governments, states, the federal government and foreign governments. (I break out trusts and estates separately because there is divided authority in different jurisdictions over whether trusts and estates are entities, or are simply a special hat that the trustee or executor wears that are not entities, which can be relevant in some highly technical situations.) Agency Situations The term "person" is also often used in the sense that it refers to the principal and not the agent, when an agent is taking action on behalf of the principal. Thus, if there is a law that says "a person who enters into a real estate contract must disclose that person's taxpayer identification number", and someone with a power of attorney from you signs a real estate contract on your behalf, the power of attorney agent should disclosure your taxpayer identification number and not theirs. Why Is The Term "Person" Defined So Broadly? One important reason for using the term "person" to apply to entities as well as human beings, is that it allows for statutes and contract terms or case law legal rules to be stated in very general terms without being wordy in a way that accurately reflects how those legal rules or contract terms should apply to entities. For example, a statute using the word "person" might say: A person who is engaged in business in this state must register with the department of business licenses. By using the word "person" in this way, the statute wouldn't have to say instead (probably less accurately and less comprehensibly): Any individual, partnership, limited liability company, corporation, business trust, non-business trust, estate, governmental entity, or other entity, including the principal of any agent acting on behalf of the principal, engaged in business in this state, must register with the department of business licenses. The phrasing without the word "person" would be more likely to create loopholes because some kind of entity is omitted, and would be prone to ambiguity because one would have to decide which words that define the kind of persons and entities that are covered modify which other words in the sentence. Thus, using the word "person" is often makes entities more rather than less accountable to the law, by making legal language more clear and more general (and hence containing fewer loopholes). "Individual" or "Natural Person" Usually the term "individual" or "natural person" would mean a human being, although, of course, there are other senses of the word "individual" such as "an individual Widget" referring to exactly one Widget in particular, as opposed to Widgets in general. Alternative Definitions Of "Person" There are isolated times when the word "person" would not include minors and incapacitated people who are incapable of suing or entering into contracts in their own name due to lack of legal capacity. It isn't uncommon to have a definition of "person" in a statute or contract that omits governmental entities, that omits all kinds of entities, or that omits particular kinds of entities (e.g. foreign entities or corporations). For example, a tax statute might define "person" in a way that includes natural persons and entities, but excludes governments. Some of the definitions of terms like these in the bankruptcy code are particularly non-intuitive.
In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source.
The point of the Bluebook is to give uniform citation rules, so that anyone who reads a citation to a public record like a case, statute or regulation will be able to find it for themselves. It's generally used for brief writing. If you're talking about a private contract between two individuals, nobody is going to be able to look it up, because it's not a public record; there is no "citation" that will magically get them to it. Instead, you would ordinarily attach the contract as an exhibit, then cite it accordingly. On first reference: April 20, 2014 Agreement of Sale ("Sale Agreeent"), attached as Exhibit A. On later reference: Sale Agreement (Exhibit A). Of course, your court's citation rules may vary. If you're looking to cite something for an academic paper rather than a court filing, and you have to use bluebook format rather than a real academic citation format like MLA or Chicago, follow rule 17.1, the general rule for unpublished materials. For these purposes, a contract is no different from a letter or another non-public document.