Rights cumulative

Boilerplate Anatomy™ →Go uptown A “typical” rights cumulative clause: Except to the extent provided to the contrary in this Agreement, each party’s rights, powers, remedies and privileges, as provided in this Agreement, are cumulative and not exclusive of any rights, powers, remedies and privileges conferred upon that party by operation of law. view template Resources: commercial imperative | Verbiage | Look, I tried | The ultimate client Index: Click ᐅ to expand: Boilerplate Representations and warranties Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Somewhere, once upon a time, one of our learned friends must have had a near-death experience, psychotic episode, or somehow hit on the paranoid thought that a cause of action conferred by contract might inadvertently squish an analogous one arising at common law or under statute.

It might, but only where the theory of the game suggests it should, and here, your rights cumulative clause isn’t needed, and won’t work anyway.

Where it will work it goes without saying, and isn’t needed.

Where it will work, it isn’t needed

I might pass you my manuscript under a confidentiality agreement: your publication of it in breach of that agreement may entitle me contractual damages, but my direct losses as a result — the traditional measure of contractual damages, of course — might add up to a lot less than your resulting profits — which the common law might regarded as unreasonably speculative losses beyond the reach of an aggreeived contracting party — as a result.

No matter: because I hold the copyright in the manuscript, I can exercise my statutory right to have you account to me for those profits too — but where my contractual damages and your profits coincide, I can only recover once.

There is no suggestion that a fellow waives her copyright by signing a contract (except on with that express intent), so she should hardly need a rights cumulative clause to satisfy herself of that fact.

Where it won’t work, and isn’t wanted

Simetimes rights are not cumulative: that is inevitable, you should embrace it, and a hastily injected rights cumulative clause is a chocolate teapot anyway. There is no concurrent liability, for example, in contract and tort, because they are the yin and yang of civil liabilities: tort is the system of rights and obligations that are presumed to exist between otherwise unconnected people whose existences interfere with each other — who are neighbours, in Lord Atkin’s well-oiled phrase, but not lovers (in mine) — who haven’t directly agreed what the rights and obligations between should be. Tort is the delicate business of describing the illusive point at which strangers become neighbours, and articulating a practical public morality between them of the sort that the hateful ordinary fellow on the Clapham Omnibus might contrive. Those presumptive, “when all else fails” rules fall away when neighbours become intimate enough to personally agree the rules of engagement between them. Then they are contracting counterparties, and their specific rights and duties they work out for themselves.