Rights cumulative: Difference between revisions

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{{boileranat|rights cumulative|}}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 contract conferred by contract might inadvertently squish one arising at common law or under statute. I might pass you my manuscript under a confidentiality agreement: your publication of it to the world in breach of that agreement may entitle me [[contractual damages]], but my direct losses as a result — the traditional measure of damages — might add up to a lot less than your resulting profits 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 damages and your profits coincide, I can only recover once.  
{{boileranat|rights cumulative|}}Somewhere, once upon a time, one of our [[Chicken-licken|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 and 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 damages — might add up to a lot less than your resulting profits 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 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.
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.


In some cases 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 yin and yang: [[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.
===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 [[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 the rules of engagement between them. Then they are contracting counterparties, and their specific rights and duties they work out for themselves.

Revision as of 15:48, 30 June 2020

Boilerplate Anatomy™



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.

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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 and 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 damages — might add up to a lot less than your resulting profits 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 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.