Re: Trading Partner or Party - What's in a name

["Winchel 'Todd' Vincent, III" <winchel@mindspring.com>]

> I agree with David Webber's suggestion that both should be in the
glossary.
> Party is certainly a more general term, but the trading partner is the one
> that needs an agreement or profile set up.  Some parties might not.  Many
> companies have problems using the word "partner" at all, since that word
> contains legal implications that I'm sure Winchel can enlighten us about.
> Traditionally, when we have had a Trading Partner Agreement in EDI, it has
> been a contract of sorts, containing agreement about acceptability of the
> electronic form of a document in place of a piece of paper.  I have had
> vendors refuse to sign them! The "TPA" as Marty Sachs introduced it goes
> well beyond that concept to include some really great information more
> aligned with the concept of "trading partner profile" than "agreement."


Although I am a lawyer, I am not a subject matter expert in "Trading Partner
Agreements".  My assumption has been that you do have someone in this group
that is an expert on Trading Partner Agreements.  I also assume that you
have specific reasons for wanting to use Trading Partner Agreements.  If you
do not, then my first question would be "Why Trading Partner Agreements?"

I can see why a company might not want to use the word "partner."  A partner
is ususally someone with whom one enters into a business relationship for
profit (i.e., partners in a company or a firm).  A partner has fiduciary
duties to other partners that are imposed by law and have nothing to do with
any written agreement/contract.  A contract/agreement (not in the consumer
context) made between parties operating at "arms-length" does not usually
impose such fiducuary duties.   So, I could understand why a particulary
anal lawyer might object to the word "partner", because this might imply a
"partnership" when what is meant is simply an arms-lenght
agreement/contract.  Indeed, I have no idea why the term "trading partner"
is used, because a "trading partner" is really just a party to a
contract/agreement, not a "partner" as "partner" is usually understood.

My understanding is that a "Trading Partner Agreement" is a legal term of
art used for complex EDI agreements/contracts.  If I have my history
correct, there was an American Bar Association workgroup and workproduct on
this subject, although it was before my time.

We have a CONTRACTS Workgroup at Legal XML so, if/when you ever want some
feedback from a legal perspective (other than mine) we have 95 people on the
list, many of whom are lawyers and some of whom I would consider expert
e-commerce lawyers (and who have much more practical experience than I do).

Todd