When the enduring debate about the utility of the now-extinct bar admission course sprouts its perennial bloom, I often harken back to one life-changing moment: a hilarious real estate instructor stood in front of 200 hundred understandably somnolent students awaiting a lecture on topics like deferred indefeasibility and he jolted them into a lively chorus of laughter by yelling, in his best Jack Nicholson voice, “you can’t handle the truth.” He then imparted a penetrating truth: “Everyone struggles to remember which is the mortgagee and which is the mortgagor,” he told us, “struggle no more, remember this – the MortgagEE is the one with the monEY, the bank.” I was instantly grateful to him for ending the stigma over not knowing my “ee”s from my “or”s and, 20 years later, I am still thankful for the tip. It remains the way I remember whether I, the one most definitely without the money, am the ee or the or in my enduring relationship with my bank.
I am setting out to cement a similar spot in the hearts and minds of lawyers and future lawyers by unlocking the mysteries and providing the definitive device for remembering all of your legal ees and legal ors. What unites the ees and sets them apart from the ors? Do the ees always have the money? Has our view of which party has advantages changed over time so the ees and ors don’t seem to have a consistent implication across legal areas? Is the combination of Eeyore’s telling name and his implacable melancholy a metaphor for the unspoken shame in not knowing whether he was the leasee or the leasor of the House at Pooh Corner? It’s a muddling botheration.
I started my sleuthing with the ee/or relationship that likely implicates the fewest of us – the franchise relationship. Maybe understanding this more esoteric relationship is the key to it all. “I know just who to call,” I thought, “OBA past-president and franchise lawyer extraordinaire David Sterns. He has been a good friend and important mentor; he will be happy to hear from me and explore this riveting question,” I thought.
I told him why I was calling and he immediately set me straight on at least that last score. “I can’t believe you are calling me with this. Couldn’t you have found ANYone else to ask this stupid question,” he asked. When I told him I was going to put that in the article, he said, “be sure to add that I could not get you off the phone fast enough.”
He relented a bit as most of us do when presented with an opportunity to talk about something we know so well and an interviewer who awkwardly refuses to hang up. I ultimately got off the phone wiser in three ways:
- The franchisee is the not the big player like the residential mortgagee with all the money; they are the individual operator who is given their franchise by the typically larger corporation – there went my potential “who has the monEY” or big player/little player unifying theory.
- Maybe the French is instructive, David suggested. Franchisé can mean an allowance or enfranchisement – you are given an allowance, or are empowered, to use the name, IP, information, techniques and other rights that come with the franchise. The franchisee is given the franchise like the mortgagee is given the mortgage. While technically true, this gets us no closer to a device that allows for an instant answer to that ultimate test of legal knowledge – the questions you are asked in the elevator or at an elementary school career day. While the mortgagee does technically take the mortgage like the franchisee takes the franchise, most of us think of our home mortgage as our very own albatross. “I still have a mortgage,” borrowers say, and lenders often talk about how easy it is for prospective borrowers to “get a mortgage.”
- I should probably have called Peter Viitre if I was looking for a franchise lawyer who would engage in patient exploration of the ee/or conundrum.
No mnemonic device has yet presented itself. (On the plus side, I now know that mnemonic starts with an “m”… I wonder if there is an easy way to remember that.)
Let’s see if the landlord/tenant relationship sheds any light with its harder to remember ee/or counterparts. For this one, I called a commercial leasing lawyer from a large multinational who I knew could not avoid me for long. I left a detailed message on this interesting topic and, to my delight, he returned my call moments later. As I excitedly launched into the conversation, he seemed as impatient with the inquiry as David had been, and it was clear he had not given the matter due, or, in fact, any, consideration. “Didn’t you listen to my message?” I asked, disappointed. “No,” he said, and explained he was calling me to tell me he was taking our son on a somewhat inevitable trip to the urgent care centre following his trip to the trampoline park. “Oh no, Poor little guy,” I said, and, sure it was just a sprain, continued, “speaking of ‘little guys’, is the tenant the leasee or the lessor?” “The leasee,” he said with an exasperated sigh. Given the cast and crutches I encountered when I returned home, I did not try to extract any more on the subject from my co-mortgagor.
Perhaps the answer lay with the ee we have all most likely been: an employee. To explore what conceptually united employees, mortagees, leasees and franchisees share, I called the very pleasant BLG employment lawyer Matt Certosimo. Matt started with an interesting fact: while it is the legal ee we always remember, employee and employor (just go with it) are relatively new legal terms, having replaced the more offensive “master and servant” in the last part of the last century. He gave the search for a unifying theory as much time as anyone could be expected to, but it wasn’t easy.
The franchisor, employor and lessor would all seem to be the more typically powerful, but the mortgagor does not seem to fit the mold. Enter the kinder version on an OBA past–president, Lynne Vicars, a long-time in-house counsel at a major bank. She would say that, in fact, the mortgagor is the one with the power; we have just been conditioned to think of it incorrectly. It is mortgagor who gives the mortgage to the lender.
So, one tattered friendship, a broken ankle, an interesting fact and a social evolution later, the best I can do is this: the ORs are the OwnORs. The mortgagors are the home owners, the lessors the owners of the rented property, the employors (a now well-established spelling) own the operation for which the employees work, the franchisor owns the name and other rights given to the franchisee, the licensor owns the rights the licensee gets permission to use, etc.
If you have a better mnemonic or philosophical device to share, one that involves, for example, the correct spelling of all the words, send it to us at firstname.lastname@example.org and we will share it.