Rights cumulative: Difference between revisions
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 6: | Line 6: | ||
===Where it ''will'' work, it 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 | 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 aggrieved 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 for profits|account to me for those profits]] too — but where my [[contractual damages]] and your profits coincide, I can only recover once.<ref>There is an arid intellectual discussion to be had about which prevails in a time of conflict. Nothing hinges on it, but it seems to the [[JC]] that ones proprietary statutory rights under a copyright pre-exist any rights you might have under this or that [[contract]], so a claim for lost profits through [[breach of copyright]] always comes first. This means the contractual damages under a [[confidentiality agreement]] are likely to be meagre: this is a perennial problem with confidentiality agreements.</ref> | No matter: because I hold the [[copyright]] in the manuscript, I can exercise my ''statutory'' right to have you [[Account for profits|account to me for those profits]] too — but where my [[contractual damages]] and your profits coincide, I can only recover once.<ref>There is an arid intellectual discussion to be had about which prevails in a time of conflict. Nothing hinges on it, but it seems to the [[JC]] that ones proprietary statutory rights under a copyright pre-exist any rights you might have under this or that [[contract]], so a claim for lost profits through [[breach of copyright]] always comes first. This means the contractual damages under a [[confidentiality agreement]] are likely to be meagre: this is a perennial problem with confidentiality agreements.</ref> | ||
| Line 13: | Line 13: | ||
===Where it ''won’t'' work, and isn’t wanted=== | ===Where it ''won’t'' work, and isn’t wanted=== | ||
Sometimes rights arising in different ''magisteria'' of the law ''aren’t'' 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 souls whose existences happen to interfere with each other — who are “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine) — people who haven’t directly agreed what the rights and obligations between them should be. | 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 souls whose existences happen to interfere with each other — who are “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine) — people who haven’t directly agreed what the rights and obligations between them should be. | ||
[[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbours]], and articulating a practical public morality between them of the sort that the hateful ordinary [[Man on the Clapham Omnibus|fellow on the Clapham Omnibus]] might contrive. Those presumptive, “when all else fails” rules fall away when [[neighbours]] become intimate enough to personally agree specific rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and their specific rights and duties they have work out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. If I have, in full possession of my senses, agreed to do something unreasonable, and you have agreed to pay for it, I cannot appeal to the rules derived from [[Donoghue v Stevenson - Case Note|misadventures with gifted | [[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbours]], and articulating a practical public morality between them of the sort that the hateful ordinary [[Man on the Clapham Omnibus|fellow on the Clapham Omnibus]] might contrive. Those presumptive, “when all else fails” rules fall away when [[neighbours]] become intimate enough to personally agree specific rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and their specific rights and duties they have work out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. If I have, in full possession of my senses, agreed to do something unreasonable, and you have agreed to pay for it, I cannot appeal to the rules derived from [[Donoghue v Stevenson - Case Note|misadventures with gifted ginger beer]], [[Ferae naturae|escaping wild animals]] and [[Miller v Jackson - Case Note|mis-hit cricket balls]] to excuse my commitment. | ||
{{ref}} | {{ref}} | ||
Revision as of 12:35, 24 November 2020
|
Boilerplate Anatomy™
 A “typical” rights cumulative clause:
|
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.
Well, it might, but only where the theory of the game suggests it should — and there, you shouldn’t need a rights cumulative clause and, if you have one, it won’t work anyway.
Where it will work, that “unrelated rights are cumulative where they don’t overlap” goes without saying, so — well, you don’t need it there, either.
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 aggrieved 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.[1]
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
Sometimes rights arising in different magisteria of the law aren’t 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 souls whose existences happen to interfere with each other — who are “neighbours”, in Lord Atkin’s well-oiled phrase, but not “lovers” (in mine) — people who haven’t directly agreed what the rights and obligations between them should be.
Tort is the business of describing the elusive 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 specific rules of engagement between them. Then they are contracting counterparties, and their specific rights and duties they have work out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. If I have, in full possession of my senses, agreed to do something unreasonable, and you have agreed to pay for it, I cannot appeal to the rules derived from misadventures with gifted ginger beer, escaping wild animals and mis-hit cricket balls to excuse my commitment.
References
- ↑ There is an arid intellectual discussion to be had about which prevails in a time of conflict. Nothing hinges on it, but it seems to the JC that ones proprietary statutory rights under a copyright pre-exist any rights you might have under this or that contract, so a claim for lost profits through breach of copyright always comes first. This means the contractual damages under a confidentiality agreement are likely to be meagre: this is a perennial problem with confidentiality agreements.