81,695
edits
Rights cumulative: Difference between revisions
Jump to navigation
Jump to search
no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 5: | Line 5: | ||
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 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=== | ===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. | 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. | ||
| Line 12: | Line 12: | ||
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 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=== | ===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. | 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 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 — 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 | [[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 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. 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. | ||
{{ref}} | {{ref}} | ||