To: <David.M@cableinet.co.uk>
Cc: <kmcvay@nizkor.org>
Subject: Re: Proposed Draft of Agreement
Date: Wed, 28 Apr 1999 11:27:18 -0400

Sir:

I received the communication from you concerning the first draft of the proposed contract. This communication is a response to the questions you raised.

I have deleted material for which no response is necessary.

At this time I see no point in redrafting the contract and will not do so until the issues in dispute are settled:

In response to my comment:

<begin>
When and if a contract is signed I will, with consultation with the signer attempt to find a laboratory based primarily on the following criteria:

1. Reputation and experience with foreign language analysis.
2. Price.
3. Proximity to Washington D.C. to facilitate any necessary on-site copying.

While the draft calls for the Nizkor Project to suggest a laboratory, I would have no objection to consulting with you during the process as an agreed laboratory would expedite the testing. Further I have no objection to your revising the contract to include this right of consultation.
<end quote>

You answered:

Accordingly I contacted Charles M Salter Associates of San Francisco (http://www.cmsalter.com/about.html). It will be observed from their website that they specialize, inter alia, in this type of forensic work and that they have provided evidence in major court cases. The contact person here is Dr John Freytag

That is not correct. Based upon information on their website, Salter is a "consultant in acoustics and audio/visual system design." There is no information that they "specialize" in spectrographic analysis of voices or have testified in any cases concerning voice print analysis. In fact, all of the forensic work that they cite is with issues of acoustics and noise control; none involved voice identification. While they claim ability to do "voice print" analysis, there is no indication that they are certified by the International Association for Identification (IAI) or the Voice Identification and Acoustical Analysis Subcommittee (VIAAS). This is the only certification available and we consider such certification as an absolute necessity.

In reviewing Mr. Freytag's credentials I note that he has no doctorate, that he is a P.E. dealing with acoustics, and, although his professional credentials are listed, there is no indication that he is either a member of VIAAS or that he has been certified by them.

If you have other information not contained on their website, please advise me.

(http://www.cmsalter.com/personne.html#freytag). Dr Freytag stated that Charles M Salter Associates routinely carries out this sort of analysis, and he has expressed an interest in working with us on the analysis of the tapes.

In an e-mail to me dated 8 April (Message-Id: <3.0.32.19990408151637.00de3d00@shell10.ba.best.com>) Dr Freytag raised the following points (he subsequently gave me permission to post his words in this forum):

1) The authenticity investigation should not be limited to voiceprint analyses. Physcial, chemical and electronic examination of the recording should be made to investigate the recording age, type of equipment used, tape (or wire) composition, etc. Additionally, the recording should be checked for evidence of splicing, dubbing, etc. as we routinely do for evidentiary tapes in criminal matters.

I cannot accept this opinion as given. The physical, electronic and chemical analysis he suggests would be of no value in the analysis of this tape for the purposes in which we are interested or to a discrimination case in general. The provenance and existence of the tape is not in question.

My client does agree that the tape should be analyzed for splicing. It should be noted that the tape in question was known to be in existence in 1946 and the technology required for sophisticated alteration by dubbing was not available. Any splices would show up on a copy as well.

2) The reliability of any opinions regarding voice print matching depends upon the quality of the recordings being compared, the extent of matching contextural materials (i.e., are the two recordings saying the same thing?), speaker disposition during the two recordings, acoustical backgrounds, and non-linearities in recording equipment.

The two scientific studies (Dr. Oscar Tosi and FBI) indicate that the most important factor is the number of similar words analyzed. The error rate dropped sharply between Tosi (10 words) and the FBI study (20 words) demonstrating this. The VIAAS standards do NOT require voice equalization.

The second most determinative factor is the known skill of the examiner as Dr. Tosi noted in his study.

3) All voiceprint opinions which we develop carry a caveat. The best of results would be a high qualitative estimate of the liklihood of a voice match. The worst results would be inconclusive.

Mr. Freytag is not following the VIAAS standards promulgated on January 1, 1992.

The caveat, required by the VIAAS, reads "The spectrographic/aural technique used is not completely conclusive; however, an examination following the IAI Standards does allow for a meaningful voice comparison."

I believe that you have misinterpreted the final statement in this paragraph. Mr. Freytag cannot be referring to the content of opinion itself but the confidence with which it is stated. The Standards of the VIAAS sets forth the wording of the seven possible conclusions that can be reached. They include "possible elimination," "probable elimination" and "elimination." Thus the accepted standards include the possibility of elimination. Further confirmation can be found in the Tosi study and FBI study both of which include "false negatives." Should Mr. Freytag words mean what you stated, it is an indication that he is not following the accepted scientific standards for such analysis.

4) It is very difficult to perform reliable voiceprint comparisions in different contexts. Speech may not be disassembled into phonemes and then reassembled into another context for the purpose of voiceprint comparision. We must compare word sequences and phrases to develop reliable conclusions.

This contradicts both the FBI studies and the Tosi study when referring to a discrimination test. In the FBI test there were 696 identifications which consisted of one false positive and two false negatives. In this study the standard used was 20 words. There was a higher rate of failure in the Tosi study which used 10 words and a non-certified, untrained examiner. That study was further complicated as it involved open and closed testing rather than discrimination testing as will be done here. Tosi's conclusions are that discrimination testing is inherently more accurate than either open or closed testing

5) Our laboratory+engineer bills at US$200 per hour. Voiceprint analyses generally require a minimum of 10-times the recording length for analysis. The 190-minute comparision is necessary because we must sort through two recording samples to find matching context. While the 5-minute section may be of utmost interest to you, voiceprint comparison needs matching context

This statement is contrary to both VIAAS and FBI standards. Matching words for the test can be developed from written transcripts. With the length of this speech, such comparison would be the first step.

wherever we may find it. We will also need to retain a German translator.

The only purpose of a translator would be to make the work of the laboratory easier. That should be part of the laboratory fee not a separate expense.
<end quote>

Several points follow from this:

a. Access to the original tape is necessary so that tests over and above voiceprint analysis can be carried out. This is not an insurmountable problem.

This is contrary to VIAAS standards. The FBI prefers analysis of original recordings but this in not an absolute necessity. The only reason Mr. Freytag gave for this opinion was based on his desire to perform physical tests that are unnecessary.

b. Great care will be necessary in the selection of a comparison tape. If it is greatly different from the alleged Posen tapes then there is a risk of biasing the study against the hypothesis that it is really Himmler. Considerable thought needs to be given to the process to be used for the selection of a comparison tape. Such selection, however, cannot be made exlusively on the grounds of scientific convenience -- to compare a disputed Himmler tape with another disputed Himmler tape (or one likely to be disputed) would hardly give us a useful conclusion.

The choice of the comparison tape is, of course, important. Please note that the original contract gives you the right to reject the proposed comparison tape.

c. Dr Freytag's opinion that:

requires that great care be given to the contractualization of the interpretation of the response. As the lawyers whom I consulted pointed out, there would need to be close liaison between the drafter of the final contract and the laboratory carrying out the analysis to establish precisely the form in which the results would be produced by the laboratory (which, I should add, itself depends on the tests to be carried out) and then to translate the results into a decision as to their implications regarding the authenticity of the Himmler tape, who has won the challenge, and who pays what to whom.

The Standards of the VIAAS specify how a conclusion is to be stated.

My client considers adoption of those standards in the context of this test to be mandatory. It should be noted that the FBI standards, which are slightly more rigorous, include the VIAAS standards.

d. The costs of this exercise are likely to be much, much higher than the costs cited by Yale F. Edeiken,

Only if Mr. Freytag's position is accepted.

Not only is estimate several times higher than other estimates and the hourly fee suggested quite high but it includes additional testing and expenses that is not required either by practice of such testing or the accepted standards of the science.

Further any laboratory doing forensic testing routinely includes a reasonable estimation of cost and allocation to a preliminary survey to determine whether testing is feasible. These are not issues that can be addressed in our contract but in the contract or letter of agreement executed with the laboratory.

the garbled clause 12:

<begin quote>
12. In case of the breach of this contract and would be impossible or very difficult to ascertain accurately, because the actual damages that either party would sustain if the other party breaches its obligations and duties under this agreement are uncertain the parties agree in good faith that reasonable compensatory damage for the harm done is is the party in breach of this contract shall forfeit all claim to any funds on deposit with said attorney, pay as liquidated damages the sum of Ten Thousand ($10,000.00) U.S. Dollars, and bear the incidental costs, including, inter alia, reasonable attorney's fees of the non-breaching party or the named attorney holding said funds, and the reasonable costs and fees of arbitration including costs of transcription..
<end quote>

This was garbled in word processing, the wording of this paragraph approved by my client was:

<begin quote>
12. As the actual damages that either party would sustain if the other party breaches its obligations and duties under this agreement are uncertain, the parties agree in good faith that reasonable compensatory damage for the harm done is that the party in breach of this contract shall forfeit all claim to any funds on deposit with said attorney, pay as liquidated damages the sum of Ten Thousand ($10,000.00) U.S. Dollars, and bear the incidental costs, including, inter alia, reasonable attorney's fees of the non-breaching party or the named attorney holding said funds, and the reasonable costs and fees of arbitration including costs of transcription..
<end quote>

Particular concerns regarding the draftsmanship of the document are as follows:

(a) Numerous important areas that require detailed contractualization are glossed over. This could result not only in legal disputes but disputes as to whether agreed procedure is being followed, disputes as to the interpretation of the analysis, and disputes as to who is liable for what. These need to be tightened up. Areas of weakness include, for example:

-- attribution of procedural responsibilities (who is responsible for what);

All procedural responsibilities were covered in the contract.

-- provision of a schedule;

Since the scheduling of the test depends on a third party (the laboratory) which is not a party to this contract, the schedule of such testing is not a proper subject of this contract. If you wish to have some scheduling requirements in reaching the contract with the laboratory, please have your attorney draft them.

-- itemizing and allocation of all potential costs and procedures for dealing with unanticipated costs;

The allocation of costs and potential costs are allocated in the contract. Specifically my client will pay all laboratory costs and a similar sum is to be deposited by you. While procedures for unexpected costs was contained in the existing contract, my client has no objection to redrafting this clause for more specificity.

Please inform us of the procedures for unexpected costs that would be acceptable to you. I suggest a percentage limitation on unexpected costs with your approval required for amounts above that level.

-- analytical procedure and interpretation (how shall the analyses be conducted and interpreted, and by whom precisely shall they be interpreted);

My client has no objection to specifying that the Standards promulgated by the VIAAS in 1992 be specified in the contract.

-- translation of the interpretation of the results into a decision as to who is liable for what;

This is covered in the VIAAS standards.

-- dispute resolution procedures and procedures for dealing with unanticipated issues that might arise;

An arbitration clause is in the existing contract.

(b) There is some vague and subjective language that needs to be tightened up as far as possible in order to reduce the scope for misunderstandings and disputes. Examples include:

-- a "recognized" laboratory;

My client is willing to amend this to state "a laboratory certified by VIAAS or a laboratory operated by the government of the United States which follows those standards."

-- "good cause"

This is defined in the text of the present contract.

"--a reasonable degree of scientific certainty"

This is the legal standard for an expert to render an opinion. It requires no definition as it is well-established in law.

-- a "known speech" given by Heinrich Himmler.

I see nothing vague or undefined here. This is especially true as the contract gives you the right to participate in the selection and, implicitly, the right not to name a speech for which you have some information that demonstrates that the speech was not made by Himmler. I feel that, for technical reasons, the .best procedure is to let the laboratory propose the comparison speech to be used.

3. Specific clauses

CLAUSE 1

<begin quote>
The Nizkor Project (hereinafter "Nizkor"), an unincorporated organization based in Canada and David Michael (hereinafter "Michael") a citizen and resident of the United Kingdom hereby agree to jointly have the recording of the speech made by Heinrich Himmler before officers gathered in the Polish city of Posen in October 1943 and entered into evidence at the trial before the IMT of major war criminals at Nuremberg and currently held by the U.S. National Archives analyzed by a recognized laboratory specializing in voice print analysis to determine whether the voice on said tape-recording is that of Heinrich Himmler.
<end quote>

We feel that the counterparty should be Kenneth McVay,

My client is willing to accept this change even though, contrary to your statement, the initial challenge was issued by The Nizkor Project.

CLAUSE 2

<begin quote>
The analysis of the said tape recording shall consist only of a voice print analysis of the tape recording at issue. Any other analysis shall be done only at the expense of the party wishing such further analysis.
<end quote>

Here I simply again draw Yale F Edeiken's attention to Dr John Freytag's comment:

As Mr. Freytag's statements contradict the VIAAS standards as stated above, we do not accept them.

My client has no objection to amending this section to include examination for evidence of editing or splicing.

CLAUSE 3

<begin quote>
The voice print analysis will be performed by a recognized laboratory specializing in forensic voice print analysis to which the parties to this contract mutually agree, Nizkor shall propose which laboratory shall perform the analysis subject to the approval of Michael. Rejection of any proposed laboratory shall be only for good cause shown including, inter alia, lack of competence, a poor reputation within the profession of voice print analysis, demonstrated bias, or conflict of interest. Should the laboratory proposed be rejected for good cause, Michael will then propose a laboratory located with the continental United States, subject to the approval of Nizkor on the same basis. This process will continue until a laboratory is selected.
<end quote>

The laboratory would need to be selected before the contract is finalized so that the precise procedure to be used, the form of the results, and the interpretation of the results can be contractualized.

This is incorrect. There are published standards accepted by this field of expertise and my client insists that any work be done by either a certified laboratory or a government laboratory that maintains similar standards. We are willing to amend the contract to include specific mention of these standards.

The selection process seems onerous and unnecessary.

The selection of a laboratory is crucial to proper analysis of this tape. We cannot accept any shortcuts to this important task.

I would propose that we use Dr Freytag's team and that this be specified in the contract.

Based upon the information you have provided, Mr. Freytag - who does not indicate that he is certified by the VIAAS - is not acceptable as a scientist performing the tests.

CLAUSE 4

<begin quote>
The voice print analysis shall be done according to the standards of the laboratory chosen and the scientific principles of voice print analysis who will then, as experts in voice print analysis, make a report as to their findings as to whether the tape recording is the voice of Heinrich Himmler to a reasonable degree of scientific certainty. Said report shall be considered in the public domain.
<end quote>

Needs tightening up as specified above.

Unless you wish specific mention of the VIAAS standards and certification, I see no need to amend this section.

CLAUSE 5

<begin quote>
The analysis shall compare the said tape recording to a known speech given by Heinrich Himmler. The selection of control specimen shall be determined by the laboratory performing the analysis from the archive of speeches and other public statements made by Heinrich Himmler maintained by the U.S. National Archives Either party has the right to reject any such alternate proposed specimen for good cause which, for the purpose of this agreement, consists only of a showing that the suggested speech is not suitable for analysis or of clear and convincing evidence that the speech was made by a person other than Heinrich Himmler.
<end quote>

As indicated above, selection of the tape would need careful thought. It would need to meet the scientific standards of the lab, but it would also need to be undisputed -- and not reasonably disputable

Good cause is specified as showing either that the selected speech is not amenable to analysis or it can be shown that it was not given by Himmler. This places the burden of showing that the speech was not given my Himmler on the person making that claim.

My client is happy with this clause as it is presently drafted especially as you are part of the selection process.

CLAUSE 6

<begin quote>
If the named laboratory is unable to perform a complete analysis due to the length of the tape recording, the minimum analysis shall consist of the portions of the speech dealing with the Final Solution of the "Jewish question" and two other portions selected at the discretion of the laboratory performing such analysis.
<end quote>

I would say that this "ausrotten" section, which should be cited in full in an annexure to the contract so that there is no dispute about the section in question, should in any case be the absolute minimum section analysed.

My client has no objection to attaching the German text of this section to the contract. Not only will it specify the crucial portion of the speech but could act as a guide for the laboratory, simplifying there choice of words to be used for the comparison. Please prepare a transcription of the language upon which the laboratory to focus so that it can be included as an appendix.

My client disagrees that this section is "minimal." In fact, the provision of two other sections in the analysis would be an important confirmation of any findings.

Moreover, at an absolute minimum, in addition to voiceprint analysis, analysis would have to be undertaken to ensure that this tape has not been spliced or dubbed, as Dr Freytag has indicated.

My client, as had been stated, is willing to add analysis as to splicing or editing. I know of no scientific test that would indicate whether "dubbing" - the copying of one tape to another - could be determined.

CLAUSES 7 AND 8

<begin quote>
7. Nizkor shall pay all fees required by the laboratory.

8. Prior to actual payment of any such fees, Michael will deposit a sum equal to those fees with an attorney licensed to practice law in Pennsylvania to be placed in an attorney's trust, escrow, or IOLTA account pending the expert report of the laboratory. Nizkor agrees to provide the names of three (3) such attorneys. Should Michael insist that another attorney holds the funds as described above, he shall bear the sole cost of any legal fees which are incurred as a result of his decision.
<end quote>

This differs from the original challenge as presented to Mr Giwer by Yale F Edeiken. I cite Message-ID: <4vl522$hv2@news.enter.net> posted in alt.revisionism by Yale F Edeiken:

<begin quote>
Third. Trust account. There is no need for any special account. Every lawyer must maintain (or have access to) a trust account for the deposit of clients funds. Withdrawals cannot be made from such an account without notice or, depending on the agreement, permission of the client or a court. If Giwer does not trust the account that I maintain or the one our firm maintains either his attorney could hold it or we could name a neutral attorney to do so.
<end quote>

Is there any reason why Yale Edeiken has backed off from the original challenge in this respect? I found the original proposal put to Mr Giwer far preferable in this regard.

Yes. At the time this was written I had not been retained by The Nizkor Project.

An attorney accepting such funds and responsible for determining whether conditions precedent for distribution have been met has a fiduciary duty to all persons with an interest in those funds. This is an absolute duty in such cases and the attorney holding the funds could be joined as a party to any litigation or arbitration and, under most U.S. procedures could initiate an equity action against all claimants to determine which are entitled to the funds. This raises the possibility of a conflict of interest if the attorney for either party holds the funds and, therefore, they are ethically barred from doing so. An independent person must be retained to perform this function.

You should note that the U.S. consists of more than 50 jurisdictions each of which have their own terminology. An attorney's trust account (as it is called in my jurisdiction) is known elsewhere as an "escrow account." An IOLTA is, in fact, a trust account which bears interest and is insured by a fund available where the funds have been unethically taken from the account.

CLAUSE 9

<begin quote>
Should the laboratory require additional fees, Nizkor will advance said fees to the laboratory upon deposit of a sum by Michael equal to those additional fees with the named attorney to be placed in the attorney's trust, escrow, or IOLTA account as aforesaid within thirty (30) days of being notified by mail that such additional funds will be required.
<end quote>

This creates a legal obligation for me to pay any additional fees that the laboratory might demand. I would need to have a right of refusal should I, at my sole discretion, consider the additional fees excessive, unreasonable or unnecessary.

My client is willing to amend the contract as specified above. It is not acceptable to give you sole discretion to abort the testing based on a whim.

CLAUSE 10

<begin quote>
Should either party fail to make the payments due either to the laboratory performing such analysis or to a licenced attorney for depositing a trust, escrow, or IOLTA account, it will constitute a breach of this agreement. As liquidated damages, as set forth below, all sums already deposited in the said account shall be returned to the non-breaching party and the breaching party shall pay the sum of Ten Thousand ($10,000.00) U.S. Dollars as liquidated damages.
<end quote>

We don't see the necessity for this.

Please consult your attorney for an explanation of liquidated damages. Had you done so as you stated you would in your communication, you would have understood the nature of damages in a contract action. This clause has, as your attorney would have recognized, a clear meaning which is the exact opposite of the effect you assume.

It could lead to lengthy disputes and litigation.

In fact, it would reduce any litigation to a single, simple question.

If there is a breach of the contract it will be obvious for all to see and that will be sanction enough.

Please consult your attorney as to the meaning of a liquidated damage clause. It is not a "sanction" but compensation. Please note that the failure to include this clause raises a problem of damages under Hadley v. Baxendale.

Consideration should be given to deleting this clause.

Since this clause eliminates the complexity of any litigation that would result from a breach of contract, my client will not consider deleting this clause.

CLAUSE 11

<begin quote>
Except in cases of breach of contract or as otherwise provided herein the attorney shall release and distribute the sums held in said account following and pursuant to the expert report of the laboratory chosen. Said distribution shall be made as follows:

a. If the expert report finds that voice print analysis confirms that the voice on said tape recording is that of Heinrich Himmler to a reasonable degree of scientific certainty all funds held in such account shall be released and distributed to Nizkor.

b. If the expert report finds that voice print analysis confirms that the voice on said tape recording is not that of Heinrich Himmler to a reasonable degree of scientific certainty all funds held in such account shall be released and distributed to Michael.

c. If the expert report finds that voice print analysis is inconclusive in that it is unable to confirm or deny to a reasonable degree of scientific certainty that the voice on said tape recording is or is not that of Heinrich Himmler Nizkor and Michael shall split the costs of the analysis equally. To this end all funds held in such account shall be released and distributed to equally to Michael and Nizkor. Any rebate or refund from the laboratory as a result of their failure to be able to perform the analysis shall be divided in the same manner.

The parties agree that, in all cases, the decision of the attorney holding said funds shall be final and no liability shall accrue to said attorney by reason of his acting in conformity with the report of the expert.
<end quote>

Two points.

First, I have a problem with this decision being made by "the attorney holding the funds"We propose that the contract, which should be drafted in close liaison with the laboratory responsible for producing the results, should specify precisely the form in which the results should be produced by the lab.

Any attorney accepting the funds will be given a letter of instruction approved by both parties. This is standard procedure.

The laboratory will be expected to conform to the standards of VIAAS standards. The consultation needed is to ask them whether they are certified and whether they follow those standards. Any laboratory that answers "no" to either question will not be considered.

We further propose that the contract should specify precisely which results should constitute a "win" for myself and precisely which results should constitute a "win" for the counterparty.

This is clearly specified in the contract.

A report stating that, to a reasonable degree of scientific certainty, that the speech was made by Himmler, constitutes a "win" for my client. A report stating that, to a reasonable degree of scientific certainty, that the speech was not made by Himmler is a "win" for you A report that states, to a reasonable degree of scientific certainty, that no conclusions can be drawn is a wash.

We are willing to amend this to include the findings of "possible elimination" and "possible identification" as inconclusive results.

This implies that the contingency described in clause 11b of the draft contract could not arise -- it could not be proven that the speaker is not Himmler =FB and hence, irrespective of the outcome, I would be obliged to pay half of the costs.

This is, as pointed out above is incorrect.

You have either misinterpreted Mr. Freytag's communication or he is un= aware of the published and accepted standards for this type of analysis.

counterparty. We suggest that the basic principle to be followed here would be that if, in the opinion of the laboratory, the match is of such a high standard that there can be no reasonable doubt that the voice is that of Heinrich Himmler,

The standard by which an expert is bound by any court is "to reasonable degree of scientific certainty;" there is, in fact, case law which states that not only is that the standard but that those specific words must be used. My client will not accept a report that deviates from the legal standard for evaluating the report of an expert. Had you consulted an attorney, her or she could have explained this to you.

CLAUSE 13

<begin quote>
Any dispute under this contract shall be submitted to binding arbitration by the American Arbitration Association, pursuant to their Commercial Arbitration Rules or, at the option of the party bringing such action, binding common law arbitration pursuant to the statutes, rules and practices within the Commonwealth of Pennsylvania. The loser of said arbitration shall bear any costs of arbitration, including, inter alia, fees paid to the arbitrators, incidental costs of the arbitration including, inter alia, transcription fees, and the reasonable attorney's fees of the non-breaching party. Nizkor and Michael agree that any decision of this binding arbitration may and shall be reduced to a judgment in a form valid under the laws and jurisprudence of Canada, the United Kingdom, and the Republic of South Africa. Notification of the decision to initiate the arbitration process shall be by mailing a notice of such intent to the other party or his representative.
<end quote>

We are not happy with this. I am not familiar with Pennsylvania law, nor would it be easy for me, as a resident of Great Britain, to obtain counsel to advise on such law. The costs of travel to, and accommodation in, Pennsylvania, and the fact that I would be obliged to be away from my business for a lengthy period of time, would make this process onerous.

It is equally onerous for my client and for the same reasons. Further, as noted above, there is actually a third party to be considered here - the person holding the money. He or she may be drawn into any litigation over this matter. It is unfair to leave him exposed to the same onerous conditions as you note. If British law or Canadian law was selected, for example, the third party would be required to produce for a court expert testimony as to the law in those jurisdictions whereas he could represent the law in other U.S. jurisdicti ons himself in a matter this simple.

In fairness to the person holding the funds, I believe utmost consideration to the problems that the attorney holding the funds might face. That consideration would include having the local courts available to him or her, being able to apply local law, and eliminating the possibility that her or she would be obligated to travel to London or Vancouver to explain to a foreign court how he followed his fiduciary obligations.

My client would be willing to amend this clause to specify the that law and the jurisdiction shall be that of the person holding the funds.

Next, there is an arbitration clause in this paragraph. This is a rather simple matter that would be heard in less than a day before a judge. In an arbitration setting, specified in the contract, it would last no more than 3 hours. The only issues for parties other than the person holding the funds would be the contract and the report of the expert. As long as you were properly represented, your presence would not even be required.

Again, had you followed your own advice and consulted an attorney, this could have been explained to you.

CLAUSE 14

<begin quote>
The parties agree that the validity and construction of this agreement and of the rights and duties of the parties shall be governed in accordance with the laws of the Commonwealth of Pennsylvania and that the jurisdiction for any such litigation not subject to binding arbitration will be the U.S. District Courts which shall be the sole jurisdiction for the resolution of any such dispute. Nizkor and Michael agree that any decision of a court of the designated jurisdiction, may and shall be reduced to a judgment in a form valid under the laws and jurisprudence of Canada, the United Kingdom, and the Republic of South Africa.
<end quote>

The above reservation concerning clause 13 applies equally to clause 14.

And my answer is the same.

CLAUSE 15

<begin quote>
For the purposes of this agreement notice to a designated agent of a party shall constitute notice to a party. Each party shall designate one person and/or firm to act as a designated agent.
<end quote>

In my case notice should be communicated directly to myself, unless this is subsequently waived in writing by myself.

The clause is "waived" by your failure to appoint an agent.

CLAUSE 16

<begin quote>
This agreement shall not be assigned by either party without the written consent of the other party to the proposed assignment.
<end quote>

We do not see the necessity for this clause.

I am absolutely flabbergasted by this statement.

Had you consulted an attorney you would have been informed that, unless otherwise specified in the contract, a contract is freely assignable. That means that the party could be changed for a nominal consideration without prior notice to the other party.

Considering that you spent a substantial portion of your communication demanding a change to the identity of the other party, your objection to a clause that would prevent transfer of the obligations of the contract is not reasonably explicable.

Had you consulted an attorney as you promised, you would have understood its meaning and that it is a standard clause in any contract.

CLAUSE 17

<begin quote>
This agreement is indivisible as to all of the rights, duties, and obligations stated herein. Breach of any duty or obligation constitutes a breach of the entire agreement and give rise to a cause of action for termination or breach of contract as set forth above. No partial invalidity of this agreement shall effect the validity and enforcibility of the remainder of the agreement.
<end quote>

OK, with the reservations expressed above.

I saw no reservations expressed above.

Again, had you consulted an attorney you would have been made aware of t he possible legal consequences of deleting this clause.

CLAUSE 18

<begin quote>
This agreement constitutes the entire agreement between the parties concerning the voice print analysis of the speech made by Heinrich Himmler in Posen in October, 1943, as preserved on tape at the U.S. National Archives. This agreement supercedes any prior written or oral agreements between the parties regarding the subject matter of this agreement and contains all covenants and agreements between the parties with regard to the voice print analysis of the speech made by Heinrich Himmler in Posen in October, 1943. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, oral or written, have been made by any party or any person authorized to negotiate for any party, other than those embodied in this agreement, and that no other agreement, statement, or promise not embodied in this agreement shall be binding or valid upon the parties to this agreement. <end quote>

First, we need to designate the speech precisely -- the one made on 4 October.

We will amend this paragraph to include the date of the speech.

Second, as indicated above, the analysis would need to go beyond voiceprint analysis.

We will amend the contract to include tests for splicing or other electronic fabrication.

Third, the final sentence appears superfluous and could cause complications. Suggest delete.

This is the result of your failure to consult an attorney. This is called a "merger" clause and is present in most contracts. Its practical effect is to REDUCE complications. There is no reason to delete it on the sole grounds that you do not understand it.

4. Concluding comments

These comments are public posturing and have no place whatsoever in thes e negotiations. Please confine your communications to me to the issues of this contract. Should you wish I am willing to provide you with a genuine plastic milk crate from "Lehigh Valley Dairies" so that you can go to Hyde park, set yourself up on whatever corner appeals to you, and orate to your heart's content.

I will redraft the contract including the agreed amendments when there is substantial agreement on the terms and when you have consulted an attorney so that the principles of contract law can be explained to you.

-Yale F. Edeiken

[ Index ]

Home ·  Site Map ·  What's New? ·  Search Nizkor