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{{ | {{boileranat|rights cumulative|[[File:Cake.jpg|450|center|thumb|A [[legal eagle]] having some rights and exercising them too, yesterday.]]}}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 a [[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, the proposition that “unrelated rights are cumulative where they don’t overlap” goes without saying, so — well, you don’t need it there, either. | |||
===Where “[[rights cumulative]]” ''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 for profits|account to me for those profits]] too — but where my [[contractual damages]] and your profits coincide, I can only recover ''once''. 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 one’s 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]] in and of itself are likely to be meagre. This is a perennial problem with confidentiality agreements, and is the reason for all that mush about [[equitable remedies]] and [[injunction]]s. | |||
Where was I? There is no suggestion that a fellow waives her [[copyright]] by signing a [[contract]] (unless the contract clearly ''says'' that), so she should hardly need a [[rights cumulative]] clause to satisfy herself that her rights are cumulative, unless she deliberately waived them, where they won’t be. | |||
===Where “[[rights cumulative]]” ''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 generally 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, but who haven’t directly agreed what the rights and obligations between them should be — “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine). | |||
[[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbour]]s, and articulating a practical public morality between them of the sort that hateful [[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 agree specific bilateral rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and those specific rights and duties they have worked out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. It is true that a tortious relationship will pre exist a contractual one — it is hard to get close enough to someone else to engage in intimate contractual relations with them without becoming neighbours first — but seeing as the very point of a contract is to dispell all those uncertainties, it seems to me contractual obligations are, at their essence, intended to dispel tortious ones. | |||
So if I have, in full possession of my senses, agreed to do something unreasonable or stupid, and you, in yours, have agreed to pay for it, I cannot appeal to 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. | |||
Now construction lawyers will jump up and down and say “but what about {{casenote|Henderson|Merrett}}?” and they will have some colour of justification for doing so — see [[concurrent liability]] for more — but none of this really impinges on financial contracts, and quietly I’m not sure there is genuine concurrence, even there. | |||
{{sa}} | |||
*[[Concurrent liability]] | |||
{{Technical Tuesday|22/11/20}} | |||