False Issues

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False issues are tactically injected as part of the deal for many reasons. False issues are strawman issues that are not important and are withdrawn at some point to appear as a real concession, hopefully triggering a reciprocal concession.


An example is when one party in a sale of goods transaction between businesses makes an issue about the choice of law provision, spends time on that, and later drops it. That party then wants a big concession from the other party in return. The issue is that this may be a valueless concession because the laws governing the transaction (sale of goods between merchants) will be governed by the same law, the Uniform Commercial Code Article 2 (“UCC-2”), to be precise. The substantive provisions of UCC-2 are adopted in all states. Therefore, agreeing to drop one state’s law for another, which is also regulated by the U.S. Constitution’s Commerce Clause, is not material.


To handle false issues as part of the deal, simply call the party on it. Focus, focus, focus on your substantive needs objectively. “Who values that deal point,” or “Why do I care?” Ensure dummy issues are real issues by calling them out.

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