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===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> | ||
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===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}} | ||