Re: [registrars] Transfer Process Points

[Larry Erlich <erlich@domainregistry.com>]

Ross Wm. Rader wrote:
> 
> Register.com has made several recommendations on how the existing proposal
> can be improved. Tucows has a few informal comments on these
> recommendations.
> 
> 1. Definition of Apparent Authority. Apparent Authority is a legally defined
> term already. Furthermore, requiring that the Gaining Registrar abide by the
> Losing Registrar's definition of apparent authority will through the process
> into a state of confusion. ie - Tucows says "Admin Contact", Register.com
> says "Registrant" JoeX says "My Mother"...etc. It would be next to
> impossible to build a system that would deal with differences from registrar
> to registrar on any meaningful basis.

Thanks for pointing that out (that apparent authority is defined legally).

So, what this says to me is that we are dealing with
what a "reasonable registrar" (as opposed to a
reasonable person) would believe when
interpreting the whois output. In other words, it is
NOT reasonable to believe that Interland, a web hosting
firm, has apparent authority over the domain GM.COM. It is
reasonable for a registrar to believe that the billing
contact, with an @GM.COM web address COULD,
under certain circumstances, have apparent authority
over the GM.COM domain. If the whois output (as I have
previously suggested) was modified by the potential
losing registrar, to have certain restrictions, then
this might NOT be the case).

What this all boils down to again is that it
is up to the gaining registrar to take the necessary
precautions prior to making a transfer request,
and that you can't restrict this to a strict definition
of who has the authority to agree to make these changes.
("Only Admin, "only Registrant" - it depends on the
circumstances). The definition of "apparent authority"
(below) seems to support this.

This will probably not sit well with registrars
that would like to have highly automated systems
in order to facilitate transfers. I think in the end
what we are going to see is that in order to maintain
some protection, a human is going to have to
get involved in the transfer process.

This would also seem to support the conclusion
that under certain circumstances an AUTO NACK
might be appropriate (note that I didn't say
ALL, I said CERTAIN).



http://dictionary.law.com/definition2.asp?selected=2411&bold=%7C%7C%7C%7C

apparent authority
n. the appearance of being the agent of another (employer or principal)
with the power to act for the principal. Since under the law of agency
the employer (the principal) is liable for the acts of his employee
(agent), if a person who is not an agent appears to an outsider (a
customer) to have been given authority by the principal, then the
principal is stuck for the acts of anyone he allows to appear to have
authority. This "apparent authority" can be given by providing Joe
Slobovia (who has no authority to contract) with materials, stationery,
forms, a truck with a company logo, or letting him work out of the
company office, so that a reasonable person would think Joe had
authority to act for the company. Then the contract or the price quote
given by Joe and accepted by a third party is binding on the company.
Apparent authority may also arise when Joe works for the company, has no
authority to contract, but appears to have been given that authority.
Beware of the salesman who exceeds his authority or the
hanger-on who claims to work for the boss.



> 

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Larry Erlich - DomainRegistry.com, Inc.
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