@whose

Quote:

Well, in fact, they didn´t. There are different responsibilities and liabilities for Hyperion and Eyetech,

There are separate ones, as well as joint ones. And the moment you have so much as one joint responsibility, it becomes clear that the two indeed form a joint party to a single contract.

Quote:

If you wish to form a "Personenmehrheit" contract from it, Hyperion and Eyetech would have to be explicitely concluded to one signing party.

Tell that to all the people who move in with their spouses, break up, and then find out that the rental contract they signed together, which had no explicit mention of forming a Personenmehrheit, means they are individually responsible for the joint responsibilities. Which is a very common thing, as Google will show you.

Quote:

In Germany, this construct is definetly not an implicit "Personenmehrheit" contract and the contract juristically is a series of contracts in one.

I agree that there may be a chance this contract could be viewed as three separate contracts; One between Amiga AND Hyperion, one between Amiga AND Eyetech, and one between Amiga AND Hyperion/Eyetech jointly. That's because it's such a poorly written contract that it mixes individual rights and responsibilities with joint ones, sometimes talking about "Hyperion", sometimes about "The AmigaOne Partners".
However, Hyperion would suffer from such an interpretation, because he whole "Eyetech didn't consent" goes out the window. So they are not going to push that.

Quote:

It is even more usual to form a juristic person just for a special two-party deal, of which one side is consisting of multiple parties.

Well, yeah, of course. However, that is not what happened here, now is it? So it seems a tad irrelevant. It's what Hyperion and Eyetech *should* have done (and they probably should have made the joint vessel a limited liability company, too...).

Quote:

This is because of the juristical problems of liability such implicit "Personenmehrheit" contracts definetly bear.

Precisely --- a Personenmehrheit (which you now seem to agree can be implicit despite previously stating it required explicity?!?) is a way to deal with joint liabilities/responsibilities; Under German law, each member of the multiplicity of persons is individually liable/responsible for the liabilities/responsibilities of the whole. That way, the other party in a contract with a multiplicity of persons is protected if/when there are disagreements between the members; The other party can just pick one member and demand performance, and how things are (or aren't) balanced internally is none of the other party's problem. As it should be.

Which also nicely demonstrates why he 2001 contract definitely is not a single three party contract. It imposes joint responsibilities/liabilities on "The AmigaOne Partners". A contract between parties however regulates the rights and responsibilities between the contract parties. So in this case, Amiga was given certain rights which "The AmigaOne Partners" were jointly liable to perform according to.
Now what happens if "The AmigaOne Partners" don't. Say they don't properly report sales every month (or was it three months?). Amiga then needs to notify "the other party" of a breach. But if this was indeed a three party contract, then who to notify? Say they notify Hyperion, then Hyperion could simply say "Guys, yo got the wrong number. Sales reports are Eyetech's responsibility according to an agreement we have between Hyperion and Eyetech, which you Amiga guys are not party to, and which you consequently have never seen". So Amiga goes to Eyetech, and Eyetech says "Guys, you got the wrong number. Sales reports are Hyperion's responsibility according to an agreement which you Amiga guys are not party to, and which consequently you have never seen". So Amiga goes back to Hyperion...

Obviously, such a situation would be silly --- the rights of one party must not be affected by disagreements between other parties in a multi-party contract. Thus, in a multi (more-than-two) party contract, rights and obligations are still defined between individual parties. If instead of "The AmigaOne Partners shall provide sales reports" it said "Each of the AmigaOne Partners shall provide sales reports", that would be OK. But again, it doesn't, so treating the 2001 contract as a three-party contract would lead to absurdity. Thus, it is not a three party contract.

Last edited by umisef on 18-Nov-2007 at 02:42 AM.

@fairlanefastback

Quote:

So the Friedens have worked full time for no money for 6 years on OS4

Uhm, Hans-Joerg recently stated emphatically that he was getting paid. So it's not "for no money".

@Spectre660

Quote:

Will you please stand still so that we can catch up with you .

Oh yeah, check out this shocker.....


"Re: Amiga Inc vs Hyperion: today the 10 days deadline for Hyperion to respond to the Court case
Posted on 24-May-2007 8:37:37 by Tigger

Hyperion approved it by signing the bill of sale with Itec, we dont know that Eyetech approved it (but we dont know that they didnt) and if thats an issue, its an issue for both Hyperion and AI, they both violated there contract with Eyetech."



What??? Tigger thought it was a THREE PARTY CONTRACT???

GASP!!!!!!!!

But we're all such ignorant morons about the law for not knowing it's a "TWO" party contract. I mean, geez, I thought I was such a stupid sh*t for not having enough what was it he said... oh... I didn't have enough two party contracts on my "bookshelf".

Oh and I know english isn't your first language but it's "their" contract not "there".

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@Spectre660

Quote:

Spectre660 wrote: @AmigaHeretic Here is his time table from earlier on A small timetable: April 23, 2003 - Itec buys AmigaOS including the OS4 license from AI (Washington) April 24, 2003 - Benji and Itec sign a bill of sale selling OS4 to Itec Oct 10, 2003 - KMOS buys Itec and gets the OS. April 15, 2004 - Amiga Inc (Washington) announces it has told all trademarks etc to KMOS. March 16, 2005 - KMOS renames itself Amiga Inc. -Tig

[/quote]

Which is pretty much the timetable we have now, except thanks to the lawsuit we have more points and more facts about how much people got and the exact transfer, its not much different my 2004 timetable here:

Tiggers Timetable from March 2004

-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@AmigaHeretic

Quote:

AmigaHeretic wrote: @Spectre660 Quote: Will you please stand still so that we can catch up with you . Oh yeah, check out this shocker..... "Re: Amiga Inc vs Hyperion: today the 10 days deadline for Hyperion to respond to the Court case Posted on 24-May-2007 8:37:37 by Tigger Hyperion approved it by signing the bill of sale with Itec, we dont know that Eyetech approved it (but we dont know that they didnt) and if thats an issue, its an issue for both Hyperion and AI, they both violated there contract with Eyetech." What??? Tigger thought it was a THREE PARTY CONTRACT??? GASP!!!!!!!!

Where do I say its a 3 party contract?
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Where do I say its a 3 party contract?

Maybe this will make it stand out more clearly..........


"Re: First round goes to Hyperion
Posted on 29-Jun-2007 7:35:17 by Tigger

No actually on April 23, 2003, AI(W) sold the rights to the classic OS to Itec. They kept the trademarks and other items. It wasnt illegal for them to do this since Itec was a first secured creditor, they were definitely paid for it, the question is did the other parties agree to the transfer of the contract. AI(W) definitely did because they are ones that sold it to Itec, Hyperion did (though they protest that they didnt) because on April 24, 2003 the entered into a contract with Itec to sell the OS to them for $25K per the 2001 contract, that would have only been legal for them to do if the contract had been transferred. So the only one we dont know about is Eyetech, so unless Eyetech comes forward and shows good reason that they did not want the transfer to Itec, and oppose it, this should be a non-issue."


See that part....

"so unless Eyetech comes forward and shows good reason that they did not want the transfer to Itec, and oppose it"

Isn't that what all us retards have been saying? But no no no, it's a "two party" contract so Hyperion represent the second party. That's "CASE LAW" as you say.

All this spining....I'm getting dizzy...............

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Back in my day, we didn't have water. We only had Oxygen & Hydrogen, & we'd just shove 'em together

@AmigaHeretic

Quote:

AmigaHeretic wrote: Well, Hyperion would disagree, probably on a couple different points, but I'll point out just one. I guess the main one would be that Itec isn't allowed to "sell" the 2003 contract i.e. OS4 code and sources on to another company without their signature/permision (ie they tried to sellOS4 to KMOS) and hence have viloted the contracted. If it is even valid at all.

Why in your opinion is Itec not allowed to sell the 2003 contract? Nothing in the contract says that, and they didnt sell the contract, they bought the OS by way of the contract and then sold the OS to KMOS at a tidy profit, no laws broken, no violation of the 2003 contract.
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Same reason the 2001 contract can't be sold with out all the parties being in agreement. 2003 contract extends the same rights as laid out in the 2001 contract. There are a whole host of reason, but I you're expert and I suspect you already know.

Where did Hyperion sign the sale to KMOS? Maybe they did I don't know.

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Back in my day, we didn't have water. We only had Oxygen & Hydrogen, & we'd just shove 'em together

@AmigaHeretic

Quote:

AmigaHeretic wrote: @Tigger Same reason the 2001 contract can't be sold with out all the parties being in agreement. 2003 contract extends the same rights as laid out in the 2001 contract. There are a whole host of reason, but I you're expert and I suspect you already know.

Itec makes a pretty convincing legal arguement (that I agree with) that the terms of the 2001 contract dont apply to the 2003 agreement. It doesnt say they do and the law is pretty clear that you must explicitly apply them vs implicitly apply them as those that believe the 2001 terms carry over believe.
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@AmigaHeretic

Quote:

But no no no, it's a "two party" contract so Hyperion represent the second party

The question is --- were Hyperion allowed to speak for the second party. It may well be that they weren't, and that doing so (as they did), they assumed rights of representation that they did not have on their own.

However, that does not change that the 2001 contract is a two party contract, where one party is made up of two separate entities. Whether each of those entities can individually command the *rights* of the combined party would be a detail of the governing law (and it is unlikely, as the results could easily be absurd in the case where the entities disagreed --- thus the generic rule of being liable individually for joint liabilities, but needing joint action to act on joint rights).

All of which doesn't help Hyperion. You don't get to usurp the rights of your co-party in signing a later contract, and then years use "Oh, but we were never allowed to sign that thing in the first place" as a reason for not delivering. Especially not if your co-party apparently couldn't care less about your naughty behaviour, and wished you would just go away.

@umisef

Quote:

The question is --- were Hyperion allowed to speak for the second party.

No, the ONLY question is should Tigger be putting people down for saying they think it's a three party contract and Eyetech might have a say, when he's says no it a two party contract Hyperion represents them both? Only to find out that in the past he has on several occasions been pointing out the same cautions of it being a 3 party contract!!!! And to watch out that Eyetech might come into the picture!! Kinda funny

Last edited by AmigaHeretic on 18-Nov-2007 at 04:45 AM.

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Back in my day, we didn't have water. We only had Oxygen & Hydrogen, & we'd just shove 'em together

@umisef

Quote:

However, that does not change that the 2001 contract is a two party contract, where one party is made up of two separate entities. Whether each of those entities can individually command the *rights* of the combined party would be a detail of the governing law (and it is unlikely, as the results could easily be absurd in the case where the entities disagreed --- thus the generic rule of being liable individually for joint liabilities, but needing joint action to act on joint rights).

Well, at any rate if you read a few posts up you can see where Tigger doesn't agree with what you are saying and believes, the 3rd party to the contract, Eyetech could come in and dispute the sell of the 2001 contract and cause some problems. But, hey, if you don't agree you'd have to talk to him about that not me. He has a lot more 3 party contracts on his bookshelf than I do.

Last edited by AmigaHeretic on 18-Nov-2007 at 05:02 AM.

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Back in my day, we didn't have water. We only had Oxygen & Hydrogen, & we'd just shove 'em together

Damn, why can't we all just get along and make a killer product out of OS4.x

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Amiga is additive coz it is fun to use

Well well.

Kinsel, you ole he coon you.

I have a feeling what all the ITEC arguments do is remove both Itec and AMIGA(D) from the rights to terminate the 2001 Agreement.

This may be why we have the lawsuit that is the Title of this thread "HYperion VOF vs Amino Development Corporation".

The beast which is the 2001 Agreement still lives..........

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@AmigaHeretic

Quote:

AmigaHeretic wrote: No, the ONLY question is should Tigger be putting people down for saying they think it's a three party contract and Eyetech might have a say, when he's says no it a two party contract Hyperion represents them both? Only to find out that in the past he has on several occasions been pointing out the same cautions of it being a 3 party contract!!!! And to watch out that Eyetech might come into the picture!! Kinda funny

I'd argue that I havent said that in past as I did above. Its a two party contract between 3 companies. As umisef has correctly pointed out, its definitely possible for one of the companies to object to what another company does even if they are in the same party of the contract. You are looking at a post from when we believed that Itec had bought the 2001 contract and comparing it to when we heard they didnt which changes things quite a bit. Itec never owned the 2001 contract was new information from Itec, it still doesnt change the premise that we've been talking about since early 2004. Itec gets the rights to the OS in March, sells them to KMOS in Oct. Before McEwen's talk back on Amiga.org we didnt know the buyout had been carried, before the lawsuit we didnt know when the buyback had occurred. But the Amino-Itec-KMOS trip has pretty much always been how we thought things happened since early 2004.
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@AmigaHeretic

Quote:

AmigaHeretic wrote: Well, at any rate if you read a few posts up you can see where Tigger doesn't agree with what you are saying and believes, the 3rd party to the contract, Eyetech could come in and dispute the sell of the 2001 contract and cause some problems. But, hey, if you don't agree you'd have to talk to him about that not me. He has a lot more 3 party contracts on his bookshelf than I do.

Bernd thinks that can happen too, thats what he is saying here.

"The question is --- were Hyperion allowed to speak for the second party. It may well be that they weren't, and that doing so (as they did), they assumed rights of representation that they did not have on their own."

I realize Bernd is a much more concise writer then me, but we are basically saying the same thing. His last paragraph points out what I've been saying for a long time. Hyperion can't sue on the behalf of Eyetech, which is basically what they are trying to do with there 2003 violates the 2001 contract issue, especially given that we have no idea if Eyetech objects or not.
-Tig

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We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

You are looking at a post from when we believed that Itec had bought the 2001 contract and comparing it to when we heard they didnt which changes things quite a bit.

The 2003 contract was the same back then, so only your interpretation of it seems to have changed

Quote:

Itec gets the rights to the OS in March, sells them to KMOS in Oct.

Again, that is IF the 2003 contract can be treated as a standalone "sale" agreement rather than the execution of the "buy in" clause. And that's a very big IF, which the judge will have to decide on.

By the way maybe if you could clarify your theory in a bit more detail that might lead to more interesting discussions, for example IF what Itec claims is true, that the 2003 contract is just a sale agreement, and IF that is valid and has been executed, what happens then to the 2001 contract? Does that remain with Amino or get terminated? What rights would remain with what companies at that point?

@Tigger

Quote:

Tigger wrote: @fairlanefastback Quote: fairlanefastback wrote: @Tigger [quote]If you have a receipts for all the money you owe, you would probably think you had paid in full. Since when has Hyperion issued a receipt that contained Bill's *possible* wire transfer money?

Yes, you keep saying that. HOWEVER since Hyperion now in fact claims that Itec only paid them $24750, even they are agreeing that McEwens money showed up.
-Tig
[/quote]

Link?

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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@umisef

Quote:

umisef wrote: @fairlanefastback Quote: So the Friedens have worked full time for no money for 6 years on OS4 Uhm, Hans-Joerg recently stated emphatically that he was getting paid. So it's not "for no money".

So this has been his full time job for 6 years, OS4 only? Are you backing up that assertion from Tigger? I don't know either way, but it seems pretty impossible that could be the case.

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Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@fairlanefastback
Quote:

So this has been his full time job for 6 years, OS4 only? Are you backing up that assertion from Tigger? I don't know either way, but it seems pretty impossible that could be the case.

Rogue has implied that it is the case, but then he's also quick to point out that he is a "only a contractor". The reality is probably that he also works on other non-Hyperion stuff to get by.

Why would you think that's impossible though? Because Hyperion has no visible means of income, or because of the state OS4 is in after six years?

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