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[ { "answer_id": 92687, "body": "<p>While this question was initially posed as a request for legal advice, I've stated some general principles of this kind of situation generically.</p>\n<p>You are deemed to have &quot;constructive notice&quot; for legal purposes of all documents filed in the public record pertaining to your property whether you know it or not.</p>\n<p>You are also on notice of anything that a reasonably informed person could assume to exist from observable facts (like that existence of municipal water and sewer service) upon an inspection of the property. In terms of reasonable expectations, almost every urban home is subject to multiple utility easements. If your home has (or most homes in your neighborhood have) municipal water service, municipal sewer service, electrical service, and cable or telephone lines, there are almost certainly easement in place for all of these things.</p>\n<p>Typically, in a contract for the purchase of real estate, there is a fixed deadline for you (or a title company on your behalf) to review the public record to find what is there. If you don't object by that deadline to any title issues, you can't get out of the real estate contract or undo it.</p>\n<p>Typically, the deed from the seller will contain an exclusion from the warranty of title for &quot;all easement of record.&quot;</p>\n<p>If the title insurance policy contains an exclusion for easements, you can't make a claim against that title insurance policy.</p>\n<p>Even if there weren't an easement in the public real property records, anything that has been there since 1911 would benefit from a &quot;prescriptive easement&quot; which is the equivalent of adverse possession a.k.a. squatter's rights, for easements. In New Jersey, for example, <a href=\"https://cdn.ymaws.com/www.njspls.org/resource/resmgr/2018_HANDOUTS/n-2017_Jersey-Prescriptive_s.pdf\" rel=\"noreferrer\">the prescriptive easement time period is usually twenty years</a> and never more than sixty years.</p>\n<p>Furthermore, utilities usually have the power, delegated to them by the government that grants them permission to operate or by the state, to create new easements at the very modest price associated with a reduction in fair market value caused by the easement. This is often estimated to be half of the fair market value of the unimproved land per square foot times the actual square footage occupied by the utility when it isn't working on its infrastructure.</p>\n<p>Easements, once established, run with the land, and generally can't be removed without the permission of the party for whose benefit the easement is granted a.k.a. the owner of the dominant estate (<a href=\"https://en.wikipedia.org/wiki/Servitude_in_civil_law\" rel=\"noreferrer\">in legal terminology</a>, the utility's rights in the easement are called the &quot;dominant estate&quot; and the home owner's rights in the property subject to the easement are called the &quot;servient estate&quot;).</p>\n<p>There may be implied in law duties of someone using an easement to restore damage caused after using it, but it wouldn't be worth suing over that for a bit of displaced grass and a rose bush.</p>\n", "score": 10 }, { "answer_id": 92697, "body": "<h2>Sewers have statutory easements</h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged &#39;new-south-wales&#39;\" aria-label=\"show questions tagged &#39;new-south-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<p>That is, wherever the sewer lies, it has an easement that doesn't have to be registered. This does not apply to drains.</p>\n<p>A sewer is a pipe or conduit for sewage owned and operated by a statutory body tasked with providing sewerage services; a drain is a pipe for sewage owned and operated by a private person. The drains from your house usually connect to a sewer.</p>\n<p>Water utilities have the same benefit for their water mains. However, gas, electricity, and telecommunications utilities don't. Why that is is a historical accident - water and sewerage utilities already existed when the land titles system was developed in New South Wales, but the others are Johnny-come-latelies.</p>\n", "score": 5 }, { "answer_id": 92702, "body": "<p>In the Netherlands, you're out of luck.</p>\n<p>You're supposed to do proper research about such things before purchasing the property, and property is purchased as is (with a mandatory clause about hidden defects, but that doesn't include things like easements and improper zoning, only construction flaws in the house basically).</p>\n<p>That's one reason there is a mandate to use a professional for such transactions, and it's their job to do the research and do it properly. This can turn up things like unlisted easements, improper property boundaries, zoning violations, which can then be corrected in the public record, and may or may not lead to the purchase falling through or the purchase price being adjusted to account for them.</p>\n<p>And those notaries do tend to do a proper job. And their job is needed as sometimes mistakes in the public record are found that even the selling party wasn't aware of.\nFor example the notary I used when buying my house told a story where he'd (on another transaction) had found that the garden shed was not on the plot of land being sold, it was zoned separately. The public zoning record was adjusted, the plots were merged, problem solved. Had he not found that, the house'd have been sold but the garden shed would still have belonged to the previous owner.</p>\n", "score": 1 } ]

[ "new-jersey", "real-property", "easement", "public-records", "adverse-possession" ]

[ { "answer_id": 92701, "body": "<p>You cannot legally publish someone else's materials on a website.</p>\n<p>It is no different from publishing a copy of a book for profit.</p>\n", "score": 2 } ]

[ "copyright", "intellectual-property", "internet" ]

[ { "answer_id": 92659, "body": "<p>The statute of limitations for this varies greatly from place to place and may vary as well based upon the remedy sought. There might be one statute of limitations for imposing a fine, another for injunctive relief to tear down work, and a third to impose the sanction of not authorizing further work until past violations are cleared up.</p>\n<p>For example, a stop work order is obviously moot once the work is done.</p>\n<p>Whether you can rely on a statement from a city official to waive an obligation under a municipal ordinance depends upon the authority of that official to do so.</p>\n<p><em>United States v. Laub</em>, 385 U.S. 475 (1967), <em>Cox v. Louisiana</em>, 379 U.S. 559 (1965), and <em>Raley v.\nOhio</em>, 360 U.S. 423 (1959), stand for the proposition that a defendant may not be punished for\nactions taken in good faith reliance upon authoritative assurances that he will not be punished for\nthose actions.</p>\n<p>Usually, no one, except possibly the city attorney or the city council has that authority. But this can vary significantly from one jurisdiction to another.</p>\n<p>Ignorance of the law is no excuse. The City doesn't have to provide you with any notice that you are violating the law.</p>\n", "score": 1 } ]

[ "statute-of-limitations" ]

[ { "answer_id": 92679, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>The aspects of a defamation claim that seem to be in issue are the following:</p>\n<ul>\n<li>is the publication defamatory in the sense that it <a href=\"https://law.stackexchange.com/a/85996/46948\">tends to lower the reputation of the subject in the eyes of a reasonable person</a></li>\n<li>does the statement fall within a defence to defamation, specifically fair comment or truth</li>\n</ul>\n<p>Your statement of the scenario is somewhat ambiguous for the purposes of the above analysis:</p>\n<blockquote>\n<p>But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob?</p>\n</blockquote>\n<p>It matters whether Bob:</p>\n<ul>\n<li>simply publishes &quot;Rob murdered Alice&quot;, Bob's hypothesis</li>\n<li>publishes &quot;Rob murdered Alice&quot; accompanied with language or context that communicates that it is merely a hypothesis</li>\n<li>publishes the underlying facts, the analysis, along with the conclusion of consistency</li>\n</ul>\n<p>Your description is ambiguous because despite talking about Bob's methodology in arriving at his conclusion, you don't clearly say that he publishes that along with the hypothesis.</p>\n<h3>The plaintiff's threshold burden: Is the statement defamatory?</h3>\n<p>Depending on the precise content of the published statement it may meet the low threshold of tending to lower the reputation of the subject in the eyes of a reasonable person.</p>\n<p>If it does, then the burden will flip to the defendant to establish a defence, such as truth or fair comment. Of these, based on the methodology you have described, I view fair comment as the more directly applicable defence, but it does really depend on what the content of the publication is.</p>\n<h3>Fair comment defence</h3>\n<p>The <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do\" rel=\"noreferrer\">test for fair comment is</a>:</p>\n<blockquote>\n<p>(a) the comment must be on a matter of public interest;</p>\n<p>(b) the comment must be based on fact;</p>\n<p>(c) the comment, though it can include inferences of fact, must be recognisable as comment;</p>\n<p>(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?</p>\n<p>(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.</p>\n</blockquote>\n<p>For a fair comment defence, the receivers of the impugned statement must be able to identify the underlying facts on which the statement is based. Therefore, it would not be enough for the hypothesis to be &quot;reasonably based on facts&quot;; those facts need to be also published to the listeners/readers and a reasonable listener/reader needs to be able to associate the impugned statement as being based on those.</p>\n<p>Another component of the fair comment defence is that the statement must be one of opinion, not fact. If the statement, considered in its full context, is not amenable to empirical verification or falsification, then it is a statement of opinion.</p>\n", "score": 9 }, { "answer_id": 92680, "body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a></p>\n<p>I will not address procedure in detail because to be frank it’s really subtle and way beyond my knowledge - it is full of technical points in favor of the defendant (intentionally, it makes <a href=\"https://en.wikipedia.org/wiki/SLAPP\" rel=\"noreferrer\">SLAPPs</a> harder). All I will say about it is that it ends up treated as a criminal rather than civil matter. The plaintiff must <em>porter plainte</em> (press criminal charges), which triggers a criminal procedure, in which they then make a <em>constitution de partie civile</em> (become a civil party to the case), and they get reparation only if the criminal trial convicts the defendant.</p>\n<p>The statutory basis is <a href=\"https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000006419790\" rel=\"noreferrer\">article 29 of the 29 July 1889 law about freedom of the press</a>:</p>\n<blockquote>\n<p>Toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation. La publication directe ou par voie de reproduction de cette allégation ou de cette imputation est punissable, même si elle est faite sous forme dubitative ou si elle vise une personne ou un corps non expressément nommés, mais dont l'identification est rendue possible par les termes des discours, cris, menaces, écrits ou imprimés, placards ou affiches incriminés.</p>\n</blockquote>\n<blockquote>\n<p>Any factual claim that attacks the honor or standing of another person or group is libel. Publishing or reproducing that claim is punished, even if put as a question, or if the person or group is not readily named but is identifiable [via the context].</p>\n</blockquote>\n<p><em>Note that &quot;diffamation&quot; (translated above by &quot;libel&quot;) is constituted as soon as a claim is factual and objectively disgraceful, regardless of whether the claim is true, or whether it attracts liability. It is common to have the losing instigator of a SLAPP to claim a &quot;victory&quot; against journalists, quoting a part of the verdict where tribunal recognizes the claims to be &quot;diffamatoires&quot; (&quot;libelous&quot;). This sometimes fools the public into thinking that the factual claims were false, even if the tribunal made no such determination, and in fact might have made the opposite determination in another part of the verdict. I will use the English term &quot;defamation&quot; for the common English meaning of &quot;factual claims published in violation of the law&quot; and the term &quot;libelous&quot; for the French legal meaning of &quot;factual claims that attack one’s honor or standing&quot;.</em></p>\n<p>Claiming that someone committed a crime is a factual claim that &quot;attacks the honor or standing&quot;. That claim need not be written out explicitly, if a reasonable reader would deduce it. That would depend a lot on the exact wording, but &quot;I observe fact A, fact B, fact C, and I have the feeling that all of it leads to the conclusion that Rob murdered Alice&quot; is going to be treated as a claim that Rob murdered Alice.</p>\n<p>Now, we move onto the affirmative defenses to defamation. One defense is the exception of truth, where the defendant must prove the allegations to be true or substantially true; however, in the case at hand, they are not going to be able to do it.</p>\n<p>Another defense is a creation of case law, the <em>exception de bonne foi</em> (good-faith defense). The general feeling is that it is similar to the US &quot;actual malice&quot; standard in reverse, where the defendant must prove that he or she made significant efforts to verify the truth of the matter, and was measured in their expression. Because it is a creation of case law, it is difficult for a non-expert such as myself to be quite sure of the limits (also, I was told that in recent years, there was a trend towards larger freedom of speech due to ECtHR influence).</p>\n<p>An example case would be <a href=\"https://www.legifrance.gouv.fr/juri/id/JURITEXT000007052660?init=true&amp;page=1&amp;query=02-19.136&amp;searchField=ALL&amp;tab_selection=all\" rel=\"noreferrer\">Cour de Cassation, Chambre civile 2, du 24 février 2005, 02-19.136</a>, according to which good faith requires some objective prudence in the way the assertion is made. A tabloid-style newspaper published an article attacking a singer. A lower-court dismissal was reversed by the Cour de Cassation:</p>\n<blockquote>\n<p>Attendu que les imputations diffamatoires sont réputées de droit faites avec intention de nuire et que cette présomption n'est détruite que lorsque les juges du fond s'appuient sur des faits justificatifs suffisants pour faire admettre la bonne foi ; (...)</p>\n<p>Attendu que pour les débouter de leurs demandes, l'arrêt retient que (...) la bonne foi s'apprécie en fonction du genre du journal (...)</p>\n<p>Qu'en statuant ainsi, alors que le caractère provocateur et sarcastique du magazine dans lequel avait été publié l'article litigieux ne dispensait pas des devoirs de prudence et d'objectivité, la cour d'appel a violé les textes susvisés ; (...)</p>\n</blockquote>\n<blockquote>\n<p>Given the presumption that libelous claims are not made in good faith [i.e. good faith is an affirmative defense], and rebutting that presumption requires that justifying elements be given; (...)</p>\n<p>Given that to dismiss the case, the verdict holds that (...) good faith is appreciated based on the type of journal [i.e. based on context] (...)</p>\n<p>By ruling so, although the provocative and sarcastic nature of the publishing newspaper did not remove the need for prudence and objectivity, the lower court did not follow the law; (...)</p>\n</blockquote>\n", "score": 7 }, { "answer_id": 92682, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The fact that a statement is made in a form other than an assertion of fact is not an absolute defense to a defamation claim in the U.S., if the statement can fairly be understood as a veiled or coded statement of fact.</p>\n<p>This is for the trier of fact (usually a jury) to decide if a judge determines that a reasonable juror could interpret the statement in this way.</p>\n", "score": 7 } ]

[ "defamation" ]

[ { "answer_id": 92693, "body": "<blockquote>\n<p>If pharmaceutical manufacturing meets US CFR 21, or its European equivalent is it automatically accepted by all other countries?</p>\n<p>Do other countries automatically accept any other countries manufacturing standards if they are more stringent?</p>\n</blockquote>\n<p>There may be countries that do this, but certainly not <em>all</em> countries do it, to address the question in the first paragraph.</p>\n<p>The European Union, for example, has several <a href=\"https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice/mutual-recognition-agreements-mra\" rel=\"nofollow noreferrer\">mutual recognition agreements</a> in place with several countries that have comparably strict manufacturing standards in place (Australia,\nCanada,\nIsrael,\nJapan,\nNew Zealand,\nSwitzerland, and the\nUnited States).</p>\n<p>From <a href=\"https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice\" rel=\"nofollow noreferrer\">https://www.ema.europa.eu/en/human-regulatory/research-development/compliance/good-manufacturing-practice</a>:</p>\n<blockquote>\n<p>Manufacturing sites outside the EU are inspected by the national competent authority of the Member State where the EU importer is located, unless a mutual recognition agreement (MRA) is in place between the EU and the country concerned. If an MRA applies, the authorities mutually rely on each other's inspections.</p>\n</blockquote>\n<p>It's easy to imagine that some of the countries that would rather accept the results of (for example) FDA inspections than inspect manufacturers themselves do not have the technical level required by the FDA to conclude a mutual recognition agreement. Such countries could unilaterally decide to honor the results of FDA inspections. Whether any countries actually do this, I do not know.</p>\n", "score": 2 } ]

[ "united-states", "international", "medical" ]

[ { "answer_id": 92691, "body": "<p>A &quot;whistleblower&quot; is by definition an employee, so I assume you mean &quot;what protections does the government provide if a person provides some evidence of wrong-doing?&quot;. Basically, you may be protected against violent retribution via some kind of witness-protection program, in case you are actually a witness in a criminal prosecution. On the other hand, if you call the local health department and (truthfully) tell them that some restaurant is mixing rat feces into their hamburger, the restaurant (if it survives the experience) can legally refuse to serve you in the future if they find out. They can also refuse to serve you if you smell bad or talk back to the waitress. On the third hand, a mechanic cannot confiscate or destroy your car because you informed the tax man that they aren't properly collecting sales tax. Employee whistleblowers on the other hand do enjoy special privileges, for example they cannot be fired for reporting illegal conduct, even though an employer can generally fire an employee for any or no reason.</p>\n", "score": 1 } ]

[ "whistleblower" ]

[ { "answer_id": 92651, "body": "<p>Read the terms: <a href=\"https://www.paypal.com/uk/legalhub/useragreement-full#resolving\" rel=\"nofollow noreferrer\">https://www.paypal.com/uk/legalhub/useragreement-full#resolving</a></p>\n<blockquote>\n<p>These are the terms and conditions of the contract between you and\nPayPal (Europe) S.à r.l. et Cie, S.C.A. (“PayPal”) governing your use\nof your PayPal account and the PayPal services, which we call our user\nagreement. It applies only to PayPal accounts of residents of the\nUnited Kingdom (UK), Guernsey, Isle of Man and Jersey.</p>\n</blockquote>\n<p>PayPal is a private business; the terms you agreed to allow them to suspend your account for any of the many listed reasons and stipulations in the terms. (As long as that reason is itself isn't illegal, such as discrimination against protected classes, breaking clear financial laws, etc.)</p>\n<p>You may get some help from <a href=\"https://www.gov.uk/consumer-protection-rights\" rel=\"nofollow noreferrer\">https://www.gov.uk/consumer-protection-rights</a></p>\n", "score": 1 } ]

[ "united-kingdom", "finance" ]

[ { "answer_id": 92668, "body": "<p>A $1 is often used to transfer things between companies, purely because there is no realised value yet and the contract needs an amount to be paid for it to be valid. My lawyer had done this with Company shares when the company was just starting. The same with IP in software, when we hadn't started selling it yet. It was still under development.</p>\n<p>The tax could apply in some situations - such as for software if the company has claimed the cost of development in their accounts. But in this case, both companies had the same shareholders.</p>\n<p>For a patent, that has not been used yet, the value is whatever someone is prepared to pay for it</p>\n<p>I am looking for my contracts, then I can upload relevant pages. But I found this</p>\n<blockquote>\n<p>In order for a contract to be valid and enforceable, it must meet certain legal criteria. One such criterion is “consideration”. Consideration requires that each party receive a benefit or advantage for fulfilling its obligations under the contract. Generally, except in cases where the consideration is unconscionable, such as when a party abuses a superior bargaining position, the Courts will not enquire into the adequacy of the consideration. This old and trite concept was recently tested by MemoryLink Corp (MemoryLink) in MemoryLink Corp v Motorola Solutions Inc, No. 08 C 3301, 2013 WL 4401676 (ND Ill Aug 15, 2013).</p>\n<p>MemoryLink was a corporation formed by one of the inventors of a handheld camera recording technology that was developed jointly with Motorola Solutions Inc (Motorola). At some point, all of the inventors had signed an assignment agreement that transferred all their rights in the technology to MemoryLink and Motorola. Thus, MemoryLink and Motorola became joint owners. The assignment began with the statement:</p>\n<p>“[f]or and in consideration of the sum of One Dollar to us in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged . . . .” [Emphasis added]</p>\n<p>MemoryLink later sued Motorola for patent infringement relating to the technology, arguing that the assignment was void for lack of consideration. In rejecting the arguments relating to the inadequacy of the consideration and holding the assignment to be valid, the United States District Court for the Northern District of Illinois granted summary judgment in favour of Motorola on August 15, 2013. This decision was affirmed by the United States Court of Appeals on December 5, 2014.</p>\n</blockquote>\n<p>From <a href=\"https://www.dww.com/articles/%E2%80%9Cone-dollar%E2%80%9D-sufficient-consideration-for-an-assignment\" rel=\"nofollow noreferrer\">Is “One Dollar” Sufficient Consideration For An Assignment?</a></p>\n", "score": 1 }, { "answer_id": 51347, "body": "<h2>The US company is liable for tax at the market value of the thing sold</h2>\n\n<p>This won’t be less than $1 but could be considerably more. The IRS will accept a reasonable valuation of the asset based on reasonable assumptions. Factors involved would include the likelihood of a successful application, the cost of commercialising it and the expected revenue, all assessed on a forward looking basis (i.e. without the benefit of hindsight).</p>\n", "score": 0 }, { "answer_id": 51361, "body": "<p>As in many situations like this, the answer to the question can be easily found if another, preliminary question is asked: why?</p>\n\n<p>Assuming that, economically, the fair market value of the transferred asset (whatever it is) is $1,000 and it was transferred for only $1 - there must be some reason why this was done that way, as opposed to a sale for $1,000, which is what you would expect if the transaction was done at arm's length:</p>\n\n<p>Maybe the transferree is a charity and the the transfer was done for charitable purposes: that's one possible tax treatment.</p>\n\n<p>Maybe the the transferor received stock/equity in the transferre: that's another.</p>\n\n<p>Maybe the transferee is owned by a relative of the transferor and it was done as a gift: yet another.</p>\n\n<p>Or there may have been some other, unstated, reason (repayment of debt?). </p>\n\n<p>So, find out the reason and the tax treatment will suggest itself.</p>\n", "score": 0 } ]

[ "international", "tax-law" ]

[ { "answer_id": 92661, "body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, those actions would be fully protected by the First Amendment. Andy has a constitutional right to speak freely about essentially whatever he wants -- including Mary's criminal conduct -- unless his speech falls into one of several <a href=\"https://law.stackexchange.com/questions/56001/in-the-usa-can-treason-be-protected-by-the-first-amendment/56002#56002\">narrowly defined categories</a>, none of which would apply in this case. And because Mary has already put this information out on the Internet, it is likely not sufficiently private to support an invasion-of-privacy claim.</p>\n<p>However, the unfortunate reality is that complainants, police, prosecutors, and judges frequently ignore First Amendment protections. Indeed, many states have laws against &quot;cyberstalking&quot; and &quot;telecommunications harassment&quot; that are incredibly broad, and that clearly apply to conduct protected by the First Amendment. For instance, <a href=\"https://codes.ohio.gov/ohio-revised-code/section-2917.21\" rel=\"nofollow noreferrer\">Ohio's telecommunications harassment statute</a> makes it a crime to send an e-mail &quot;with purpose to abuse, threaten, or harass another person.&quot;</p>\n<p>This means that many people who engage in First Amendment-protected speech end up getting prosecuted anyway. If they pay for a good lawyer who knows how to properly raise a First Amendment defense, they may escape any penalties. But because most defendants do not have those resources, and because many lawyers are unaware of the First Amendment implications of such prosecutions, most defendants in such situations likely end up being convicted despite behaving perfectly legally.</p>\n<p>In the <a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged &#39;united-kingdom&#39;\" aria-label=\"show questions tagged &#39;united-kingdom&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-kingdom-tooltip-container\">united-kingdom</a>, though, the situation is very different. Even if Mary is breaking the law, and even if Andy limits himself to strictly factual information about what's he's learned about her conduct, he may still be held civilly liable. Mary may also be able to pursue Andy criminally for harassment if his e-mail causes her substantial emotional distress, and civilly for &quot;harassment by publication.&quot; The fact that this information is already public is likely not going to go very far in changing the analysis.</p>\n<p>Andy's best course of action is therefore to play it safe by keeping his mouth shut. Doing so has both legal and nonlegal benefits: He avoids exposure to the hassles of defending himself from criminal charges and he gets some time to examine the resentment, jealousy, paranoia that makes him want to humiliate his &quot;friend.&quot;</p>\n", "score": 4 }, { "answer_id": 92674, "body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p>I cannot see what law could be violated by pointing a third party to publicly available, truthful information about somebody else.</p>\n<p>In particular, German criminal law excludes provably truthful statements from the slander definition (<a href=\"https://www.gesetze-im-internet.de/stgb/__186.html\" rel=\"nofollow noreferrer\">§186 StGB</a>). If you prostitute yourself you have to live with how it reflects back on yourself. I would think that even if Mary's escort side gig was not public but Andy discovered it e.g. by simple observation or because he was a customer, emailing that information to a third party would still not be forbidden.</p>\n<p>Back to the &quot;link to webpage&quot; case: A possible exception may be if the linked contents is criminal — hyperlinks to criminal contents e.g. of terrorist organizations can constitute criminal acts themselves (see <a href=\"https://de.wikipedia.org/wiki/Zul%C3%A4ssigkeit_von_und_Haftung_f%C3%BCr_Hyperlinks\" rel=\"nofollow noreferrer\">https://de.wikipedia.org/wiki/Zul%C3%A4ssigkeit_von_und_Haftung_f%C3%BCr_Hyperlinks</a>). I doubt though that this extends to email, which is private communication — and in the concrete example the page linked to is likely not criminal in itself in the first place.</p>\n", "score": 2 } ]

[ "criminal-law", "first-amendment", "email", "harassment", "stalking" ]

[ { "answer_id": 92670, "body": "<p>There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the <a href=\"https://www.gnu.org/licenses/gpl-3.0.en.html\" rel=\"noreferrer\">GNU GPL</a> and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license.</p>\n<p>Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree.</p>\n", "score": 13 }, { "answer_id": 92678, "body": "<h2>No one has copyright in the model</h2>\n<p>The person who created the code has copyright in the code. The person(s) who provided the training data, assuming it’s something subject to copyright (art is, facts aren’t) owns copyright in the input(s).</p>\n<p>As an artefact of a computer algorithm, no one has copyright in the model. Similarly, no one owns copyright in the non-original parts of the output art although it can still be infringing.</p>\n", "score": 8 } ]

[ "intellectual-property", "artificial-intelligence" ]

[ { "answer_id": 92592, "body": "<blockquote>\n<p>Is there a special exception for alcoholic beverages?</p>\n</blockquote>\n<p><a href=\"https://inspection.canada.ca/food-labels/labelling/industry/alcoholic-beverages/eng/1624281662154/1624281662623?chap=0\" rel=\"noreferrer\">Yes</a></p>\n<blockquote>\n<p>Standardized alcoholic beverages (those with compositional standards in Division 2 of the FDR such as beer, wine, rum and bourbon whiskey) are exempt from the requirement to show a list of ingredients on the label [B.01.008(2)(f), FDR].<br />\nThis also applies to icewine which, in addition to meeting the prescribed standard in Volume 8 of the Canadian Standards of Identity document, also needs to meet the wine standard in Division 2 of the FDR.</p>\n</blockquote>\n<p>But this only applies to standardized alcohol (as laid out in <a href=\"https://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._870/page-19.html#h-569708\" rel=\"noreferrer\">B.02</a> of the Food and Drugs Regulations)</p>\n<p>They are also exempt from the nutrition facts if they have an alcohol content of more than 0.5% :</p>\n<blockquote>\n<p>Beverages with an alcohol content of more than 0.5% are usually exempt from carrying a Nutrition Facts table [B.01.401(2)(b)(i), FDR].</p>\n</blockquote>\n<p>Except in the cases where this doesn't apply (<a href=\"https://inspection.canada.ca/food-labels/labelling/industry/nutrition-labelling/exemptions/eng/1389198015395/1389198098450?chap=3\" rel=\"noreferrer\">Reasons for losing the exemption</a>)</p>\n", "score": 23 } ]

[ "canada", "alcohol" ]

[ { "answer_id": 92671, "body": "<h2><a href=\"https://www.investopedia.com/terms/o/outofpocket.asp#:%7E:text=What%20Does%20Out%2Dof%2DPocket,outlay%20reaches%20the%20insurance%20deductible.\" rel=\"nofollow noreferrer\">Out of pocket expenses</a> are those that are actually paid in cash or cash equivalents</h2>\n<p>If your landlord pays an external lawyer or real estate agent for their time, that is an out of pocket expense. Their own time is not.</p>\n", "score": 2 } ]

[ "ontario", "language", "fair-housing-acts" ]

[ { "answer_id": 92658, "body": "<blockquote>\n<p>Has person Y lost his ability to trade for person X?</p>\n</blockquote>\n<p>Yes. A power of attorney that is not a durable power is not longer effective when the principal is incapacitated.</p>\n<p>If the agent believes that the principal is incapacitated the agent cannot in good faith use the power.</p>\n<p>FWIW, non-durable powers of attorney aren't very common.</p>\n", "score": 1 } ]

[ "united-states", "new-jersey", "securities", "disabilities", "power-of-attorney" ]

[ { "answer_id": 92663, "body": "<p>A lease agreement can terminate for many reasons. One of them is that the lease specifically states a termination date. Another is that there could be a clause allowing unilateral or bilateral termination, e.g. &quot;the parties may mutually agree to terminate the lease&quot;, or &quot;tenant may terminate the lease by providing 30 days notice&quot;. There can be other statutorily mandated grounds, such as the tenant being shipped out in the military, being harassed by the landlord, the premise being unsafe. If you don't pay rent, or if you run a meth factory (among other activities) the lease can be terminated.</p>\n<p>Certain <a href=\"https://www.lsd.law/define/perpetual-lease\" rel=\"nofollow noreferrer\">perpetual leases</a> may be impossible in some jurisdictions, for example <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=59.18&amp;full=true#59.18.200\" rel=\"nofollow noreferrer\">in Washington</a>, a residential lease without a specific termination period is construed to be a month-to-month lease (it terminates every month, possibly subject to renewal). I don't know of a state that allows perpetual residential leases.</p>\n<p>One might have a commercial perpetual lease, where the tenant can automatically renew the lease at the end of each period (which could be 5 years). If you don't have any stated termination period whatsoever (and the maximum duration of the lease is not statutorily stipulated), the law is &quot;generally skeptical&quot; about such perpetuities, see <a href=\"https://casetext.com/case/ginsberg-v-gamson-1\" rel=\"nofollow noreferrer\">Ginsberg v. Gamson</a> for discussion. However, &quot;courts will enforce a lease provision that grants a tenant the right to unlimited renewals, so long as the parties' intent to create that right is explicit and clear&quot;. A contract will be construed to impose an obligation in perpetuity only when the language unequivocally compels such a construction. If the agreement fails to be crystal clear on the maximum number of renewals allowed, the court may find that, for example, only two renewals are possible (basically, looking at prior case law to see if there is some existing common law rule).</p>\n", "score": 2 } ]

[ "united-states", "lease" ]

[ { "answer_id": 92626, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>Generally, the relief sought in a case like this is a &quot;restraining order&quot; or a &quot;protective order&quot;. One might also pursue a criminal prosecution for stalking in the appropriate circumstances.</p>\n<p>Typically, if one can meet the high standard for issuance of such an order, a court issues a temporary order <em>ex parte</em> (i.e. based only upon what you have said and evidence you have provided) and then sets the matter for a hearing at which the person against whom the order is sought can defend themselves in court in a fairly short time period.</p>\n<p>If the judge finds that the high threshold to issue to order is met after considering the evidence at an adversarial evidentiary hearing, then the order becomes permanent or in force for a long period of time.</p>\n<p>The circumstances that can justify the issuance of such an order vary from state to state but usually must involve either a clear risk of serious physical harm or extreme harassment short of physical harm.</p>\n<p>Generally a court's restraining order or protective order cannot be waived by the protected person without another court order vacating it.</p>\n<p>Unlike most court orders, protection orders can usually be enforced directly by law enforcement rather than solely in an after the fact contempt of court proceeding in the court that issued the order originally. This said, even though the law may say that enforcing a protection order is mandatory, in practice, law enforcement discretion means that it is not. <em>See Castle Rock v. Gonzales</em>, <a href=\"https://supreme.justia.com/cases/federal/us/545/748/\" rel=\"noreferrer\">545 U.S. 748</a> (2005).</p>\n<p>Also, as a matter of practical reality, law enforcement is often not able to stop someone who is violating a restraining order before it is too later, or because law enforcement is unable to confirm that a cyber stalker really is the person against whom a protection order has been issued.</p>\n<p>The U.S. Supreme Court is <a href=\"https://www.scotusblog.com/2023/04/justices-hear-true-threat-protected-speech-case/\" rel=\"noreferrer\">currently considering a case from Colorado</a> regarding what kind of evidence that someone's communications amount to a &quot;true threat&quot; that is sufficient to justify legal consequences for this kind of contact.</p>\n<p>Simply continuing to contact you after you ask them to not contact you is rarely sufficient. But if someone who repeatedly contacts you in a way that you make clear is unwanted this is one factor among many used to consider if the conduct justifies issuance of an order or a criminal prosecution of some kind such as a stalking prosecution.</p>\n<p>Repeatedly contacting someone against their wishes can also get someone banned from an online platform outside the court process. Many online platforms have developed filters, blocking, and privacy controls in an attempt to make it harder to engage in this kind of conduct.</p>\n<p>The cycle of behavior of a victim in this case is a common one and it can make it very frustrating for lawyers, law enforcement, and other supportive people to help someone in this situation. I've certainly seen it play out first hand.</p>\n<p>In Colorado, the primary statutes are found at Colorado Revised Statutes, Sections <a href=\"https://www.womenslaw.org/laws/co/statutes/ss-13-14-106-procedure-permanent-civil-protection-orders\" rel=\"noreferrer\">13-14-100.2 to 13-14.5-111</a>. Colorado also imposes protection orders on a temporary basis during the divorce proceedings, many kinds of criminal cases, and certain other family law cases. Under the most common kind of case under these statutes, an order may be issued to:</p>\n<blockquote>\n<p>(I) To prevent assaults and threatened bodily harm;</p>\n<p>(II) To prevent domestic abuse;</p>\n<p>(III) To prevent emotional abuse of the elderly or of an at-risk\nadult;</p>\n<p>(IV) To prevent sexual assault or abuse; and</p>\n<p>(V) To prevent stalking.</p>\n</blockquote>\n<p>Some select definitions used include:</p>\n<blockquote>\n<p>“Abuse of the elderly or of an at-risk adult” means mistreatment of a\nperson who is sixty years of age or older or who is an at-risk adult\nas defined in section 26-3.1-101(1.5), including but not limited to\nrepeated acts that: (a) Constitute verbal threats or assaults; (b)\nConstitute verbal harassment; (c) Result in the inappropriate use or\nthe threat of inappropriate use of medications; (d) Result in the\ninappropriate use of physical or chemical restraints; (e) Result in\nthe misuse of power or authority granted to a person through a power\nof attorney or by a court in a guardianship or conservatorship\nproceeding that results in unreasonable confinement or restriction of\nliberty; or (f) Constitute threats or acts of violence against, or the\ntaking, transferring, concealing, harming, or disposing of, an animal\nowned, possessed, leased, kept, or held by the elderly or at-risk\nadult, which threats or acts are intended to coerce, control, punish,\nintimidate, or exact revenge upon the elderly or at-risk adult.</p>\n<p>“Domestic abuse” means any act, attempted act, or threatened act of\nviolence, stalking, harassment, or coercion that is committed by any\nperson against another person to whom the actor is currently or was\nformerly related, or with whom the actor is living or has lived in the\nsame domicile, or with whom the actor is involved or has been involved\nin an intimate relationship. A sexual relationship may be an indicator\nof an intimate relationship but is never a necessary condition for\nfinding an intimate relationship. For purposes of this subsection (2),\n“coercion” includes compelling a person by force, threat of force, or\nintimidation to engage in conduct from which the person has the right\nor privilege to abstain, or to abstain from conduct in which the\nperson has a right or privilege to engage. “Domestic abuse” may also\ninclude any act, attempted act, or threatened act of violence against:\n(a) The minor children of either of the parties; or (b) An animal\nowned, possessed, leased, kept, or held by either of the parties or by\na minor child of either of the parties, which threat, act, or\nattempted act is intended to coerce, control, punish, intimidate, or\nexact revenge upon either of the parties or a minor child of either of\nthe parties.</p>\n<p>“Sexual assault or abuse” means any act, attempted act, or threatened\nact of unlawful sexual behavior, as described in section\n16-11.7-102(3), C.R.S., by any person against another person\nregardless of the relationship between the actor and the\npetitioner.</p>\n<p>“Stalking” means any act, attempted act, or threatened act of stalking\nas described in section 18-3-602, C.R.S.</p>\n</blockquote>\n<p>The referenced section defines stalking as follows:</p>\n<blockquote>\n<p>A person commits stalking if directly, or indirectly through another\nperson, the person knowingly:</p>\n<p>(a) Makes a credible threat to another person and, in connection with\nthe threat, repeatedly follows, approaches, contacts, or places under\nsurveillance that person, a member of that person's immediate family,\nor someone with whom that person has or has had a continuing\nrelationship; or</p>\n<p>(b) Makes a credible threat to another person and, in connection with\nthe threat, repeatedly makes any form of communication with that\nperson, a member of that person's immediate family, or someone with\nwhom that person has or has had a continuing relationship, regardless\nof whether a conversation ensues; or</p>\n<p>(c) Repeatedly follows, approaches, contacts, places under\nsurveillance, or makes any form of communication with another person,\na member of that person's immediate family, or someone with whom that\nperson has or has had a continuing relationship in a manner that would\ncause a reasonable person to suffer serious emotional distress and\ndoes cause that person, a member of that person's immediate family, or\nsomeone with whom that person has or has had a continuing relationship\nto suffer serious emotional distress. For purposes of this paragraph\n(c), a victim need not show that he or she received professional\ntreatment or counseling to show that he or she suffered serious\nemotional distress.</p>\n<p>(2) For the purposes of this part 6:</p>\n<p>(a) Conduct &quot;in connection with&quot; a credible threat means acts that\nfurther, advance, promote, or have a continuity of purpose, and may\noccur before, during, or after the credible threat.</p>\n<p>(b) &quot;Credible threat&quot; means a threat, physical action, or repeated\nconduct that would cause a reasonable person to be in fear for the\nperson's safety or the safety of his or her immediate family or of\nsomeone with whom the person has or has had a continuing relationship.\nThe threat need not be directly expressed if the totality of the\nconduct would cause a reasonable person such fear.</p>\n<p>(c) &quot;Immediate family&quot; includes the person's spouse and the person's\nparent, grandparent, sibling, or child.</p>\n<p>(d) &quot;Repeated&quot; or &quot;repeatedly&quot; means on more than one occasion.</p>\n</blockquote>\n", "score": 11 } ]

[ "england-and-wales", "any-jurisdiction", "abuse", "domestic-abuse" ]

[ { "answer_id": 92656, "body": "<p>Maybe this changes something, maybe not. But at first glance, yes, avoiding US-based vendors does help comply with Schrems II. They need not be EU-based.</p>\n<h2>Definition of an international data transfer</h2>\n<p>The GDPR unfortunately does not define what an international transfer is, and just explains when they may be lawful:</p>\n<blockquote>\n<p>Art 44: Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country […] to another third country […]. […]</p>\n</blockquote>\n<p>This has been interpreted, in particular by the official EU SCCs and by <a href=\"https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052021-interplay-between-application-article-3_en\" rel=\"nofollow noreferrer\">EDPB guidance</a>, to imply two roles: the data exporter, and the data importer. Per those EDPB guidelines, a transfer occurs when three criteria are fulfilled together:</p>\n<ol>\n<li>The data exporter is subject to GDPR (e.g. as a controller via Art 3, or as a processor via an Art 28 data processing contract).</li>\n<li>The exporter discloses or makes available personal data to the importer.</li>\n<li>The importer is in a &quot;third country&quot; (for EU GDPR: anything outside the EU/EEA).</li>\n</ol>\n<p>Note that these importer/exporter aspects are independent from roles like &quot;controller&quot; or &quot;processor&quot;. It also does not depend on where in the world the exporter is situated.</p>\n<h2>Applying this to your scenario</h2>\n<p>How does this apply to your scenario?</p>\n<ul>\n<li><p>I am assuming Alice Inc is subject to the GDPR (criterion #1). Now, Alice Inc can process personal data, and <strong>that's not an international transfer</strong>, even if Alice Inc is in the US (or any other third country). The general GDPR rules apply, such as the requirement to implement appropriate technical and organizational measures to ensure compliance and security of processing operations.</p>\n</li>\n<li><p>If Alice Inc engages data processors to process personal data on Alice Inc's behalf, then this would fulfil criterion #2 (disclosure to a third party). For example, hosting providers generally act as data processors. Any other kind of data sharing (e.g. to other data processors) would also fall under this category. Tricky in an US context: while employees would be agents of Alice Inc and would not be separate recipients, contractors/freelancers would also be potential data importers.</p>\n</li>\n<li><p>If those data importers are based in the EU/EEA, then criterion #3 is not fulfilled and <strong>there's no international transfer</strong>. For example, using an EU-based hosting providers would sidestep Chapter V of the GDPR completely.</p>\n</li>\n<li><p>If those data importers are based outside of the EU/EEA, <strong>then criterion #3 is triggered and we have an international transfer</strong>.</p>\n</li>\n</ul>\n<h2>Lawfulness of international data transfers</h2>\n<p>When there is an international transfer, it must be adequately protected. In order of decreasing priority:</p>\n<ul>\n<li>country has an EU adequacy decision</li>\n<li>appropriate safeguards\n<ul>\n<li>for a group of companies: Binding Corporate Rules (BCRs)</li>\n<li>Standard Contractual Clauses (SCCs)</li>\n</ul>\n</li>\n<li>Art 49 specific situations</li>\n</ul>\n<p>What SCCs and BCRs do is to translate enough of the GDPR from statutory law into a contract to ensure adequate protection. But to be effective, they must actually be enforceable, and the data importer must actually be able to comply with those rules.</p>\n<p>In Schrems II, the CJEU found that the US (at that time) did not offer an adequate level of data protection, and that SCCs are probably invalid as well since importers cannot comply with both the SCCs and with US surveillance laws. Before using SCCs, it is effectively necessary to perform a transfer impact assessment (TIA) analyzing, among other things, the legal context of the importer's country. It may be possible to defuse this, for example by using supplemental security measures like end-to-end that prevent unlawful use of the data even if it falls into the wrong hands. However, such measures also tend to prevent intended use, especially in a cloud context.</p>\n<p>In the <a href=\"https://edpb.europa.eu/system/files/2023-05/final_for_issue_ov_transfers_decision_12-05-23.pdf\" rel=\"nofollow noreferrer\">DPC Ireland decision against Meta Ireland (PDF)</a>, the DPC finds:</p>\n<blockquote>\n<p>7.202 In summary, therefore, I am satisfied (and I so find) that:</p>\n<p>(1) US law does not provide a level of protection that is essentially equivalent to that provided by EU law;<br />\n(2) Neither the 2010 SCCs nor the 2021 SCCs can compensate for the inadequate protection provided by US law; and<br />\n(3) Meta Ireland does not have in place any supplemental measures which would\ncompensate for the inadequate protection provided by US law.</p>\n<p>7.203 Accordingly, in making the Data Transfers, I find that, subject to the analysis contained at Section 8 below, Meta Ireland is infringing Article 46(1) GDPR.</p>\n</blockquote>\n<h2>Implications of using non-US vendors</h2>\n<p>As already mentioned, using EU-based data processors avoids the international transfer problem due to the way how international transfers are defined.</p>\n<p>Even if an international transfer occurs, that might not be a problem.</p>\n<ul>\n<li><p>Some countries have an EU adequacy decision, for example Canada, Israel, or South Korea. While there would nominally be an international data transfer that needs to be disclosed e.g. in a privacy notice, there is no additional bureaucracy required.</p>\n</li>\n<li><p>In other countries, transfer tools like SCCs might work. A TIA might show that that the issues discussed in the Schrems II decision and the DPC decision wouldn't apply there.</p>\n</li>\n</ul>\n<h2>But isn't that a contradiction?</h2>\n<p>You correctly point out a problem with the GDPR's approach to data transfers:</p>\n<blockquote>\n<p>This would however have little effect on the access to the data, in that if US law enforcement turned up at the offices of Alice Inc. they could be required to hand over the data and their access to the data will not be changed in any way by the location of the web hosting.</p>\n</blockquote>\n<p>Yes, this is arguably a loophole.</p>\n<p>However:</p>\n<ul>\n<li><p>If the US-based Alice Inc is a data processor in behalf of another controller, that controller would likely be violating the GDPR by transferring personal data to Alice.</p>\n</li>\n<li><p>If Alice Inc is a data controller: while this might not be a violation of the Chapter V rules on international data transfers, such a scenario could be argued to be an Art 24 or Art 32 violation instead (requirement to ensure compliance and security).</p>\n</li>\n<li><p>When Alice Inc transfers personal data to data importers, that is less visible to data subjects, and outside of their immediate control. However, when Alice Inc collects data on data subjects, that is more visible to data subjects, in particular through an Art 13 or Art 14 privacy notice. That notice must also contain the identity of the data controller, which would disclose that Alice is US-based, which may enable to data subjects to make more informed choices.</p>\n</li>\n</ul>\n<h2>This won't help Meta</h2>\n<p>While moving to non-US data processors can be a sensible compliance approach for many companies, it is less useful for multinationals like Meta. In this context, Meta is an Irish data controller who engages platform and development services from an American company. Even if Meta Ireland tries to perform all GDPR-covered processing activities outside the US, it's actual corporate structure situates some processing activities such as administration tasks in the US and other third countries. If my above analysis is correct, it would have been easier for Meta to comply with GDPR if the US-based Meta company were the data controller.</p>\n", "score": 4 } ]

[ "united-states", "gdpr", "is-x-legal" ]

[ { "answer_id": 92624, "body": "<p>The Establishment Clause of the First Amendment to the United States Constitution does not prohibit people with no affiliation with the government from trying to convert people to their religion in a way not endorsed by a government official or agency.</p>\n<p>It could be that there is some content neutral prohibition on strangers accosting young school children if that person is so persistent that it amounts to content neutral harassment, or that the person might actually be a sex offender prohibited from contacting children. But, the facts of the question don't seem to compel this conclusion.</p>\n<p>Even if it violates any law to do this, it is not a violation of the U.S. Constitution.</p>\n", "score": 18 }, { "answer_id": 92620, "body": "<p><em>&quot;Given that this guy wasn't an employee of the school, and wasn't in the school itself&quot;</em> why would there be a First Amendment violation??</p>\n<p>What part of this situation even vaguely looks like &quot;The Government&quot; is promoting religion?</p>\n<p>From your description, a private citizen, in a public space (<em>&quot;I don't think they were on school property&quot;</em>) was exercising Free Speech, and was doing so somewhat politely (<em>&quot;never forced or asked anyone to take it.&quot;</em>)</p>\n<p>Where is there even a question? This is <em><strong>obviously</strong></em> protected speech.</p>\n", "score": 11 } ]

[ "united-states", "education", "first-amendment", "religion", "school" ]

[ { "answer_id": 92628, "body": "<h2>In a rear-end accident the car at the back is (almost) always at fault</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged &#39;australia&#39;\" aria-label=\"show questions tagged &#39;australia&#39;\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<blockquote>\n<p><strong><a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0758#sec.126\" rel=\"nofollow noreferrer\">126</a> Keeping a safe distance behind vehicles</strong></p>\n<p>A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.</p>\n</blockquote>\n<p>That means, you should always leave enough space between you and the vehicle in front to <a href=\"https://www.nsw.gov.au/driving-boating-and-transport/roads-safety-and-rules/safe-driving/safe-stopping-distance#:%7E:text=As%20a%20general%20rule%2C%20when,vehicle%20in%20front%20of%20you.\" rel=\"nofollow noreferrer\">stop safely</a> should they undertake an emergency stop for whatever reason. As a general rule of thumb, the gap needs to be about 3 seconds (about 0.85m per km/h or 4.5 feet per mile/h). At highway speeds this is about 90m or 240 feet - very few people do this but a lot more people should.</p>\n<p>Almost invariably in a nose-to-tail accident, the rear car was not following this rule. There have been a number of cases where a rear driver avoided liability because they could demonstrate that they were following the rule but there were other circumstances that caused the collision. A recent case in Victoria had to do with a poorly designed road layout that meant the rear driver could not see the forward car until the distance was too short to stop. There have also been cases of sun-glare, insects/spiders in the rear car, and a prolonged sneezing fit.</p>\n", "score": 2 }, { "answer_id": 92635, "body": "<blockquote>\n<p>Would all the above scenarios result in driver of car B being found most blamable? United States, <strong>no-fault</strong></p>\n</blockquote>\n<p><a href=\"https://www.bankrate.com/insurance/car/no-fault-coverage/#what\" rel=\"nofollow noreferrer\">In a no-fault auto accident state, who is responsible for the accident is not necessarily checked first.</a> Instead, getting everybody <em>whole</em> again is the first step.</p>\n<p>So, first, everybody <strong>has to</strong> file a claim with their own insurance and gets paid up to the limits. Only if the damages exceed the limits, fault actually needs to get assessed. If someone is at fault, and the costs exceed that limit, then there are methods to recoup the costs to the party that had no fault, like suing the party at fault.</p>\n<p>In the case of someone breaking, the one bumping from behind usually has violated multiple statutes, among them keeping a safe distance, driving in a manner that allows them to break safely, or anything that might make him notice too late. So unless the front car did some really weird shit, <strong>usually</strong> the fault will be found with the back car.</p>\n<p>However, there's more going on: the insurance will try to prove that one of the insured drivers was negligent, so they don't need to pay for the negligent party. For the bumping from behind, usually, the back car can be found having driven negligently, and actually the claim &quot;he suddenly stopped&quot; can lead to &quot;then you negligently drove too close&quot;.</p>\n", "score": 1 } ]

[ "car-insurance" ]

[ { "answer_id": 92632, "body": "<p>The specific venue requirement is <a href=\"https://codes.ohio.gov/ohio-revised-code/section-3101.05\" rel=\"nofollow noreferrer\">ORC 3101.05</a> which says that</p>\n<blockquote>\n<p>Each of the persons seeking a marriage license shall personally appear\nin the probate court within the county where either resides, or, if\nneither is a resident of this state, where the marriage is expected to\nbe solemnized. If neither party is a resident of this state, the\nmarriage may be solemnized only in the county where the license is\nobtained.</p>\n</blockquote>\n<p>To possibly make things worse,</p>\n<blockquote>\n<p>An applicant for a marriage license who knowingly makes a false\nstatement in an application or affidavit prescribed by this section is\nguilty of falsification under section 2921.13 of the Revised Code.</p>\n</blockquote>\n<p>If they lied on the application regarding the venue, that's a large problem. Otherwise, violating 3101.05 is a minor misdemeanor, which could be a fine up to $150. There is no provision that would invalidate the marriage, other than specified prohibited marriages (not nearer of kin than second cousin, already married).</p>\n", "score": 3 } ]

[ "marriage", "ohio" ]

[ { "answer_id": 92629, "body": "<h2>It has two</h2>\n<ol>\n<li>The offeror can revoke the offer at any time <em>before</em> acceptance</li>\n<li>The offeror can stipulate the manner in which acceptance of the offer is to be done. This can relate to time, place, and method of acceptance including if acceptance can be by action and what action that would be.</li>\n</ol>\n", "score": 2 }, { "answer_id": 92630, "body": "<p>This is a general contract law principle, not specific to private lot parking tickets. The rule is that &quot;[a]n offer which requires the acceptance to be expressed or communicated in a specified way can generally be accepted only in that way&quot; (<em>Chitty on Contracts</em>, § 4-082). However, if the <em>purpose</em> of the specified mode of acceptance is achieved through another &quot;equally efficacious&quot; method, it may be considered acceptance as well.</p>\n<p>Examples:</p>\n<ul>\n<li><em>Carlill v. Carbolic Smoke Ball Co.</em> (1892), <a href=\"https://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html\" rel=\"nofollow noreferrer\">[1893] 1 Q.B. 256</a>: The offeror made an offer to the world that could be accepted by anyone who performed the terms that constitued acceptance (which was simply buying one of the smoke balls and using the smoke ball as suggested).</li>\n<li><em>Roberts v. Hayward</em> (1828), <a href=\"https://vlex.co.uk/vid/roberts-v-hayward-802980889\" rel=\"nofollow noreferrer\">172 E.R. 489</a>: A tenant accepted an offer of a new tenancy by not vacating the premises; this has been considered acceptance by conduct which was specified by the offeror (<em>Claxton Engineering Services Ltd. v. TXM Olaj-és Gázkutató Kft</em>, [2010] EWHC 2567 at paragraph 52-54).</li>\n</ul>\n<p>One corollary of this principle is the <a href=\"https://en.wikipedia.org/wiki/Mirror_image_rule\" rel=\"nofollow noreferrer\"><em>mirror image rule</em></a>, but this has been displaced in certain domains such as under the Uniform Commercial Code.</p>\n", "score": 1 } ]

[ "contract-law", "common-law" ]

[ { "answer_id": 28796, "body": "<p>How is holding her down and dry-humping her <em>not</em> molesting her? </p>\n\n<p>\"Molesting\" doesn't imply that any penetration or rape took place - it's a much broader term covering pretty much any sort of unwanted sexual contact (although more often, but not exclusively, used when a minor is involved). </p>\n\n<p>The definition for <a href=\"http://dictionary.law.com/Default.aspx?selected=1274\" rel=\"noreferrer\">Molestation</a> in Legal Dictionary at law.com ends with: </p>\n\n<blockquote>\n <p>any unwanted sexual acts with adults short of rape </p>\n</blockquote>\n\n<p>and holding someone down (unwanted) and dry-humping them (sexual act) seems to fit this.</p>\n", "score": 9 }, { "answer_id": 28805, "body": "<p>This seems less like a legal question than a common-sense question. </p>\n\n<p>What would you call it if a guy pinned you down and started humping you to get off? Would you really say there was no harm done?</p>\n\n<p>Wake up. </p>\n", "score": 1 }, { "answer_id": 28832, "body": "<p>Here are 2 links to some crime info about molestation and sexual assault in Alabama <a href=\"https://www.legalmatch.com/law-library/article/alabama-statutes-of-limitations-for-sexual-abuse.html\" rel=\"nofollow noreferrer\">https://www.legalmatch.com/law-library/article/alabama-statutes-of-limitations-for-sexual-abuse.html</a> and <a href=\"https://www.sexcrimesdefensealabama.com/child-molestation.html\" rel=\"nofollow noreferrer\">https://www.sexcrimesdefensealabama.com/child-molestation.html</a> but one is about child molestation I don't know how old she was so I don't know if that law applies to this situation but rather it is called molestation or just sexual assault it is still a crime and they were right to convict him.</p>\n", "score": 1 } ]

[ "criminal-law", "sexual-assault" ]

[ { "answer_id": 92627, "body": "<h2>Payment is “made” when the money (or equivalent) is in the hands of the payee</h2>\n<p>For your situation, the payee is right.</p>\n", "score": 1 } ]

[ "united-states", "contract-law", "ucc" ]

[ { "answer_id": 92618, "body": "<p>The 4th amendment protection against unreasonable searches is irrelevant, since it only relates to governmental searches. There may be &quot;shopkeeper privilege&quot; laws in your state that enable a detention. Ordinarily, you cannot be arrested by a person – that would be assault and false arrest. However, a state can enact an exception, such as Washington's <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=4.24.220\" rel=\"nofollow noreferrer\">RCW 4.24.220</a>, which says</p>\n<blockquote>\n<p>In any civil action brought by reason of any person having been\ndetained on or in the immediate vicinity of the premises of a\nmercantile establishment for the purpose of investigation or\nquestioning as to the ownership of any merchandise, it shall be a\ndefense of such action that the person was detained in a reasonable\nmanner and for not more than a reasonable time to permit such\ninvestigation or questioning by a peace officer or by the owner of the\nmercantile establishment, his or her authorized employee or agent, and\nthat such peace officer, owner, employee, or agent had reasonable\ngrounds to believe that the person so detained was committing or\nattempting to commit larceny or shoplifting on such premises of such\nmerchandise. As used in this section, &quot;reasonable grounds&quot; shall\ninclude, but not be limited to, knowledge that a person has concealed\npossession of unpurchased merchandise of a mercantile establishment,\nand a &quot;reasonable time&quot; shall mean the time necessary to permit the\nperson detained to make a statement or to refuse to make a statement,\nand the time necessary to examine employees and records of the\nmercantile establishment relative to the ownership of the merchandise.</p>\n</blockquote>\n<p>Speaking of Walmart, <a href=\"https://www.courts.wa.gov/content/petitions/92468-6%20COA%20Respondents%20Brief.pdf\" rel=\"nofollow noreferrer\">here is a petition</a> regarding a lawsuit against Walmart over such an event, where a shopper failed to stop to respond to exit security, resulting in her being physically stopped. A lawsuit (assault, unlawful imprisonment, outrage) ensued. The bottom line was that the shopkeeper's privilege is a valid defense against a lawsuit to the effect that a shopper does not want to comply with a request to prove that they are not stealing goods.</p>\n", "score": 4 } ]

[ "united-states", "commerce", "receipts" ]

[ { "answer_id": 92524, "body": "<p>This is true. <a href=\"https://app.leg.wa.gov/wac/default.aspx?cite=246-933&amp;full=true\" rel=\"noreferrer\">Ch. 246-933-200 WAC</a> (1)(b)(i) requires that the veterinarian</p>\n<blockquote>\n<p>Has examined the animal(s) within the last year, or sooner if\nmedically appropriate</p>\n</blockquote>\n<p>in order to have a veterinary-client-patient relationship. Without that relationship, they cannot prescribe medication for an animal, because</p>\n<blockquote>\n<p>A veterinarian shall use or prescribe drugs only within the context of\na veterinary-client-patient relationship.</p>\n</blockquote>\n", "score": 7 } ]

[ "medical", "washington", "pets" ]

[ { "answer_id": 1276, "body": "<p>From <a href=\"http://www.private-investigators-uk.com/lie-detector-test/lie-detector-test-uk-laws\" rel=\"nofollow noreferrer\">Private Investigators UK</a>:</p>\n<blockquote>\n<p>Polygraph testing is 100 per cent, totally, completely legal in the United Kingdom. However, there are a few conditions. The person undergoing the polygraph exam must be cooperative and willing to take the polygraph. No one can be forced to take one. The person administering the polygraph test must be qualified to do so and must hold a relevant degree and license. These results however, are inadmissible in a court of law. This is because there is a fair chance of the results of a polygraph being inaccurate. Since physiological responses are measured, it is possible that the stress of the situation may cause the examinee to register many false positives.</p>\n</blockquote>\n<p>As the results are inadmissible in a court, I think there would be reasonable grounds to claim <a href=\"https://en.wikipedia.org/wiki/Unfair_dismissal_in_the_United_Kingdom\" rel=\"nofollow noreferrer\">unfair dismissal</a> if she were sacked because of the test's results.</p>\n", "score": 3 } ]

[ "united-kingdom", "employment", "is-x-legal" ]

[ { "answer_id": 92594, "body": "<p>The process would play roughly as follows.</p>\n<ol>\n<li>Jessie gives $2.5M to Mike's granddaughter as a gift.</li>\n<li>Mike's granddaughter files this as income. I believe the appropriate tax law would be inheritance law and as they are not related the tax would be quite high.</li>\n<li>The tax office notices that this is highly unusual and suspicious but not illegal per se. Hence they investigate to find out more.</li>\n<li>They find out that Jessie did not legally own the $2.5M he gave (because it was illegal drug money). Hence Jessie was not in a position to make this gift and they can and will confiscate it from Mike's granddaughter.</li>\n</ol>\n<p>Note that if Jessie can prove that he legally owned the money there is no crime and he is free to give it to whoever he pleases.</p>\n", "score": 1 } ]

[ "united-states", "criminal-law", "tax-law", "money-laundering", "income-tax" ]

[ { "answer_id": 92611, "body": "<p>The fair reading is that the landlord must always ultimately be responsible for maintaining smoke detectors, even if the lease purports to say otherwise.</p>\n<p>The lease could probably shift the economic cost of complying to the tenant (e.g. charging the tenant for batteries and personnel to maintain it in addition to rent). But ultimately, in situations where the statute requires the landlord to have working smoke detectors, the landlord can't use the failure of the tenant to do their job as a defense to liability or a fine. The more specific smoke detector statute probably prevails over the more general statute on allocating responsibilities between the landlord and the tenant when it applies.</p>\n", "score": 1 } ]

[ "tenant", "residential-lease", "minnesota" ]

[ { "answer_id": 92600, "body": "<h3>The offeror has stipulated that acceptance is to be by conduct</h3>\n<p>As explained in <a href=\"https://law.stackexchange.com/a/92400/46948\">another answer</a>, given that the offeror has stipulated that parking in the lot will constitute acceptance, and given that the offeror is master of the offer, then the question is whether the act of parking in the lot constitutes acceptance of the contract. I outlined the test in that other answer and will only summarize here: the question becomes &quot;<a href=\"https://ca.vlex.com/vid/communication-of-acceptance-683505725\" rel=\"noreferrer\">whether the offeror, acting reasonably, would understand that the offeree was assenting to the terms proposed</a>.&quot; This is acceptance by conduct. This is <a href=\"https://law.stackexchange.com/questions/90788/does-contract-formation-require-subjective-meeting-of-the-minds\">an <em>objective</em> inquiry</a> focusing on how the actions would be understood to a reasonable observer, not an inquiry into the actual states of mind of the offeror or offeree.</p>\n<p>An example of the above law being applied can be found in <a href=\"https://www.scotcourts.gov.uk/search-judgments/judgment?id=b39287a6-8980-69d2-b500-ff0000d74aa7\" rel=\"noreferrer\"><em>University of Edinburgh v. Onifade</em>, 2005 S.L.T. (Sh. Ct.) 63</a>:</p>\n<blockquote>\n<p>The pursuers' notice made it plain that their position was that anyone who parked on their property without a permit would have to pay them a fee of £30 per day on that account. The defender, by parking his vehicle on their property without a permit, made it plain that he accepted that position. He signified his acceptance by his conduct in so doing. It is nothing to the purpose for him to maintain that he did not intend to pay because he considered that the pursuers were not entitled to make the charge specified. 'The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.'</p>\n</blockquote>\n<p>See also <a href=\"https://www.canlii.org/en/on/onca/doc/2007/2007onca649/2007onca649.html\" rel=\"noreferrer\"><em>Imperial Parking Canada Corporation v. Toronto (City)</em>, 2007 ONCA 649</a>. The signs said:</p>\n<blockquote>\n<p>Impark is by this sign offering space for public parking. You accept this offer by parking on this lot. Do not park on this lot if you do not agree to these terms and conditions … If you park and do not display a valid ticket or pass the rate is $69.55 per day or portion thereof.</p>\n</blockquote>\n<p>The judge found:</p>\n<blockquote>\n<p>the signs posted on Impark’s lots expressly state that Impark consents to the parking of cars without payment in advance and held that the fees that Impark collects are sums owing to it in contract rather than damages for trespass</p>\n</blockquote>\n<p>In another parking lot example, <a href=\"https://www.canlii.org/en/ca/fca/doc/2000/2000canlii15612/2000canlii15612.html\" rel=\"noreferrer\"><em>Imperial Parking Ltd. v. Canada</em>, 2000 CanLII 15612 (FCA)</a>, the Federal Court of Appeal said:</p>\n<blockquote>\n<p>In my view, the unequivocal conduct which constitutes acceptance of the appellant's offer to provide a parking space occurs when the driver leaves the lot after parking his or her vehicle. This interpretation is reinforced by the text of the large sign posed at the entrance to the appellant's lot. That is the point in time in which an owner can be deemed to have accepted the appellant's offer. <strong>Any time before that moment, a driver can demonstrate his rejection of the appellant's offer by driving away.</strong> Those who purchase a ticket must be deemed to have accepted the appellant&quot;s contractual terms upon leaving their parked vehicle in the appellant's lot. <strong>As for those who park their vehicles but fail to pay, the act of non-payment is more consistent with the intention to breach a contract than a refusal to enter into one.</strong></p>\n</blockquote>\n<h3>Bob's sign/note/sticker is not likely an effective rejection of the offer</h3>\n<p>I understand you to be asking whether Bob's sign constitutes rejection of the offer such that Bob's subsequent conduct no longer would be considered acceptance of the contract.</p>\n<p>A rejection would terminate the offer, such that it can no longer be accepted. However, <em>rejection must be communicated to the offeror</em> (<em>Chitty on Contracts</em>, § 4-124). In examples where apparent acceptance by conduct is negated by evidence of contrary intention, the offeror was in a position to be aware of the rejector's manifest expression of that contrary intention (see examples in <em>Chitty on Contracts</em>, § 4-035).</p>\n", "score": 7 }, { "answer_id": 92595, "body": "<h2>Bob has accepted the contract</h2>\n<p>The contract is accepted by a person who has observed the sign parking there. Bob has parked there so he has accepted the offer - it doesn’t matter what he mumbles to himself or writes down on a piece of paper.</p>\n", "score": 1 } ]

[ "contract-law", "england-and-wales", "trespass", "any-jurisdiction", "parking" ]

[ { "answer_id": 92520, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<h3>Theories Of Product Liability In Tort</h3>\n<p>There are three basic theories of product liability in tort (setting aside breach of warranty claims) under state law in most U.S. states.</p>\n<ol>\n<li><p><strong>Defective manufacturing.</strong> In this theory, there was a flaw in making the product that caused it not to conform to an otherwise good design, causing harm to the claimant.</p>\n<p>For example, if a fire alarm is designed to have a trigger that actives at a certain temperature, but the noise maker in the alarm melts and becomes inoperative at a temperature below the trigger temperature because the manufacturer uses plastic instead of the design requirement of metal for a part because of a temporary shortage of that metal, the manufacturer is liable for harm that results from the fire alarm's failure to activate at the trigger temperature.</p>\n</li>\n<li><p><strong>Defective design.</strong> In this theory, there was a flaw in the design of the product and that flaw caused harm to the claim and would have done so even if the product was perfectly manufactured consistently with the design.</p>\n<p>What constitutes a defective design?</p>\n<blockquote>\n<p>A company's liability for a design defect occurs when there was a\nforeseeable risk posed by the product when the product was\nmanufactured as intended and used for its intended purposes.</p>\n<p>In many states, plaintiffs also have to show that the risk could have\nbeen reduced or avoided by the adoption of a reasonable alternative\ndesign, which was:</p>\n<p>Feasible, in other words, the manufacturer had the ability to produce\nit; Economically feasible, in other words, it would not cost too much\nto make the product with the modification; and</p>\n<p>Not in opposition to the product's intended purpose, in other words,\nthe product would still perform the function for which it was created.</p>\n</blockquote>\n<p>(<a href=\"https://www.findlaw.com/injury/product-liability/defects-in-design.html\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>For example, if a whiskey distilling vat generates high internal pressures that could cause it to explode if not alleviated, and the manufacturer does not include a pressure release valve in the design to prevent that explosion, the manufacturer would be liable for the harm caused by an explosion that occurs because there is not a pressure release valve in the design making it defective.</p>\n<p>Also, failure to comply with a regulatory standard intended to enhance safety in a design when that non-compliance causes harm (e.g. designing a car without seat belts), may be a design defect as a matter of law. Likewise, failure to comply with widely recognized non-legally adopted design standards in an industry intended to enhance safety in designs of particular kinds of products, when that non-compliance causes harm, will usually constitute open and shut proof of a design defect without further proof or analysis.</p>\n</li>\n<li><p><strong>Failure to warn.</strong> In this theory, the design of the product presents risks of harm to the user that are not obvious, which would be mitigated or eliminated if the user was given an adequate warming of the risk and followed that warning.</p>\n<p>For example, while the risk of harm from a knife is obvious and does not trigger a duty to warn, if a knife is made from a material that creates a toxic cloud of chlorine gas when exposed to bleach, the maker of a knife with this non-obvious risk needs to adequately warn potential users of the knife of the importance of not exposing it to bleach or the maker of the knife will have liability for bleach related harms to users that occur.</p>\n</li>\n</ol>\n<h3>Observations</h3>\n<p>Product liability in tort is &quot;strict&quot; in the sense that there can be liability even if the manufacturer was not negligent.</p>\n<p>For example, in a defective manufacturing case, even if the manufacturer had the best quality control system in the world, if one item in a billion is defectively manufactured and causes harm as a result, the manufacturer is still liable.</p>\n<p>Similarly, in a defective design case, it is not a defense that a reasonable product designer took reasonable care to identify defects (e.g. holding brain storming sessions and reading any relevant studies) that didn't actually reveal the potential problem, if the design defect was foreseeable but the designer just didn't think of it anyway.</p>\n<p>And, in a failure to warn case, there can be liability even if the manufacturer was &quot;reasonable&quot; in the sense of providing the warnings customarily used by others in the industry but still fails to warn of a non-obvious risk that causes harm.</p>\n<h3>Application</h3>\n<blockquote>\n<p>Are they only liable if the product malfunctions in an unexpected and\nunpredictable way (e.g., the board breaks)?</p>\n</blockquote>\n<p>Not exactly. But if the product is causes harm while carrying out its intended purpose, that isn't a malfunction or defect. A gun isn't defective because it can be used to intentionally kill someone or commit suicide.</p>\n<blockquote>\n<p>Does liability only apply when a product injures a user, but not when\nthe users injures themselves using a product where harm cannot be\nexcluded?</p>\n</blockquote>\n<p>There is not liability if the user is not injured. If the user injures themselves using the product for the intended purpose this is also not a product liability issue unless the harm could have been avoided with a design change or warning of a non-obvious risk.</p>\n<blockquote>\n<p>Can they absolve themselves of liability by simply warning the user\nabout risks?</p>\n</blockquote>\n<p>If a product has a design defect, merely warning a user of the design defect will usually not relieve the manufacturer from liability.</p>\n<p>For example, stating that the whiskey vat doesn't have a pressure relief valve and could explode, when it could have been designed with them with a $2 manufacturing cost change, won't relieve the manufacturer from liability if someone is harmed by the vat exploding because it doesn't have a pressure relief valve.</p>\n<p>In reality, there are gray areas where an alleged design defect that can be fully mitigated with a warning is really a design defect, but that's why we have judges, juries, and expert witnesses to resolve close cases where there are arguments to be made either way.</p>\n<p>A skateboard does have risks even when used for its intended purpose, most of which are obvious, but some of which (e.g. getting clothing entangled in a wheel) might not be. When there is no feasible way to eliminate the risks that are present, and warnings are provided when there are non-obvious risks, then there is no liability on the part of the manufacturer of the skateboard.</p>\n", "score": 22 }, { "answer_id": 92513, "body": "<h3>Assumption of Risk</h3>\n<p>In the USA, an obvious risk <a href=\"https://www.law.cornell.edu/wex/assumption_of_risk\" rel=\"noreferrer\">can absolve the seller of liability</a>. Otherwise, no one could sell a knife, for example, or an automobile. Today, this is often part of a process that allows obviously dangerous items to diminish but not necessarily completely remove the ability to sue for damages.</p>\n<p>This doesn't mean that manufacturers aren't responsible for removing risk from even dangerous items. You can thank this for the blade stop on your lawn mower. Now if you try to trim your hedges with your lawn mower &amp; cut off your leg doing it, the manufacturer can argue that you had to defeat a safety device to do so.</p>\n", "score": 10 }, { "answer_id": 92511, "body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p>Product Liability is covered by <a href=\"https://dejure.org/gesetze/ProdHaftG\" rel=\"noreferrer\">Produkthaftungsgesetz\n(Gesetz über die Haftung für fehlerhafte Produkte)</a>.</p>\n<p>As you can see from the German title, it's laws about liability for <em>defective</em> products. But you don't have to take the title, the very first sentence reads (emphasis mine):</p>\n<blockquote>\n<p>In such case as a <strong>defect</strong> in a product causes...</p>\n</blockquote>\n<p>So, what exactly <em>is</em> &quot;a defect&quot;?</p>\n<blockquote>\n<p>A product has a defect when it does not provide the safety which one is entitled to expect, taking all circumstances into account, in particular</p>\n<ul>\n<li><p>its presentation,</p>\n</li>\n<li><p>the use to which it could reasonably be expected that it would be put,</p>\n</li>\n<li><p>the time when it was put into circulation.</p>\n</li>\n</ul>\n</blockquote>\n<p>So let's check your questions:</p>\n<blockquote>\n<p>Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?</p>\n</blockquote>\n<p>It doesn't need to be unexpected or unpredictable. &quot;malfunctions&quot; does the heavy lifting here. If <em>all</em> the company's skateboards explode on the third ride, that would be totally predictable, but still &quot;defective&quot;.</p>\n<blockquote>\n<p>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</p>\n</blockquote>\n<p>The defective product has to cause the injury. If you fall off a skateboard and injure yourself, that does not trigger any liability, if the skateboard was not defective.</p>\n<blockquote>\n<p>Can they absolve themselves of liability by simply warning the user about risks?</p>\n</blockquote>\n<p>They cannot absolve themselves. A defective product is defective, you cannot put a sticker on the box that says &quot;might be defective&quot; and get out of liability. But you are required to explain the normal use and protect against misuse that is to be epected by normal users, because it might be considered a defect if you don't.</p>\n<p>Example for a court decision: <a href=\"https://dejure.org/dienste/vernetzung/rechtsprechung?Text=22%20U%2071/16\" rel=\"noreferrer\">OLG Düsseldorf, 07.10.2016 - I-22 U 71/16</a>.</p>\n<p>Translated first paragraph:</p>\n<blockquote>\n<p>The duty to instruct obliges the manufacturer of a product within the scope of § 3 (1) ProdHaftG to warn of those dangers which are imminent in the case of intended use or obvious misuse and which are not part of the general knowledge of dangers of the circle of users, whereby the requirements in detail depend on the endangered legal interests and the magnitude of the danger. A circumstance to be taken into account when assessing obligations arising from the ProdHaftG are the dangers associated with a product, which are already inherent in the nature of the thing or are generally known or obvious. The limit of the duty to instruct is reached when - according to the objective circumstances - the consumer handles the product or the instructions attached to it carelessly.</p>\n</blockquote>\n<p>So to summarize, it depends very much on the product, it's instructions, it's normal users and their education level. But generally speaking, liabity is about <em>defects</em>, not risks. A risk is something the user takes knowingly (like using a skateboard) while a defect is something that happens unexpectedly for the user and is the producers fault (the wheels coming off).</p>\n", "score": 6 }, { "answer_id": 92607, "body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a></p>\n<p>There’s a statute for that: <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032023633\" rel=\"nofollow noreferrer\">article 1245-3 of the civil code</a></p>\n<blockquote>\n<p>Un produit est défectueux au sens du présent chapitre lorsqu'il n'offre pas la sécurité à laquelle on peut légitimement s'attendre.</p>\n<p>Dans l'appréciation de la sécurité à laquelle on peut légitimement s'attendre, il doit être tenu compte de toutes les circonstances et notamment de la présentation du produit, de l'usage qui peut en être raisonnablement attendu et du moment de sa mise en circulation.</p>\n</blockquote>\n<blockquote>\n<p>A product is faulty for the purposes of the present chapter [i.e. the manufacturer is civilly liable for the damage it causes] when it does not offer a reasonably-expected level of safety.</p>\n<p>The reasonably-expected level of safety takes into consideration all circumstances, in particular how the product is presented to the public, what use can reasonably be made of it, and when it was first introduced to the public.</p>\n</blockquote>\n<p>Therefore:</p>\n<blockquote>\n<p>Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?</p>\n</blockquote>\n<p>Yes. A reasonable person knows that skateboarding is a somewhat-dangerous activity, and if they injure themselves in a way that cannot be clearly attributed to a defect in that specific board, that’s assumed liability.</p>\n<blockquote>\n<p>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</p>\n</blockquote>\n<p>No.</p>\n<p>Let’s say a skateboard manufacturer uses (against common industry practice) wheels designed for strollers, and a user of that skateboard injures themselves when they land from a height and the wheels break. The manufacturer is likely to be liable, because it is expected that a skateboard will be used at high speed, with high mechanical stress, falling off from great heights, etc. A well-designed skateboard might break from time to time, but <em>this</em> one did not offer a reasonable level of safety.</p>\n<blockquote>\n<p>Can they absolve themselves of liability by simply warning the user about risks?</p>\n</blockquote>\n<p>Sort-of yes.</p>\n<p>Some products (electrical equipment, airplane parts, chemicals, etc.) have a very high likelihood of injuring anyone attempting to use them without proper training and knowledge. It is still legal to sell them, possibly subject to specific additional regulation (electric code etc.).</p>\n<p>It is hedged by the &quot;reasonable use&quot; clause. An arc welding station is reasonably expected to be dangerous, and its user could be expected to read through the documentation before using it. On the other hand, a folding carton should be usable without extensive training. If the carton explodes after being left open for ten seconds (*), that’s not reasonably expected, even if the carton comes with an instruction manual that prominently describes that behavior.</p>\n<p>(*) Example taken from Umberto Eco's <em>How to Travel with a Salmon</em> satirizing instructions for computer use.</p>\n", "score": 4 } ]

[ "liability", "product-liability" ]

[ { "answer_id": 92569, "body": "<p>Often one chooses your accountant, your financial advisor, or your lawyer. Another option is to appoint the trust department of a bank.</p>\n<p>I personally, as a lawyer, have a policy of not consenting to do that except in rare cases like the one in this question, of a client who just doesn't have anyone and has an estate sufficiently small that a bank trust department would not be cost effective or well suited to handling some aspect of the executorship. But, I have done it a few times in those cases. Most lawyers I know of take a similar position.</p>\n<p>If no executor is designated, your estate will usually be administered either by a large unpaid creditor, or by the public administrator (whose job is primarily to administer estates in cases where there are no next of kin, no executor has been designated, and there are no unpaid creditors who have stepped up to do the job).</p>\n", "score": 14 }, { "answer_id": 92584, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Age UK, a British charity that supports people who are elderly, have this to say on the subject:</p>\n<blockquote>\n<p><strong>If you don’t have anyone that you feel would be suitable, or your family and friends don’t want to take on the role, you could appoint a professional executor, such as a solicitor or an accountant.</strong></p>\n<p><a href=\"https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/what-do-executors-do/\" rel=\"noreferrer\">Age UK: What do executors do?</a></p>\n</blockquote>\n<p>They also offer the following pro and con.</p>\n<blockquote>\n<p>This can be especially useful if your estate is particularly large or complicated. A professional executor will charge for their services and this will be paid for out of your estate.</p>\n</blockquote>\n", "score": 7 } ]

[ "united-states", "texas", "wills", "executor" ]

[ { "answer_id": 92552, "body": "<p>The 4th Amendment exclusionary rule applies automatically in cases where law enforcement obtains evidence illegally (subject to exceptions not applicable here).</p>\n<p>In its 1920 decision in <em>Burdeau vs. McDowell,</em> the U.S. Supreme Court held that the 4th amendment is not applicable to searches by private parties, even when such searches are clearly illegal. This rule doesn't apply, however, if the private citizens was acting as an agent of the government. A more recent case reaffirming and clarifying <em>Burdeau</em> is <em>United States v. Jacobsen</em> 466 U.S. 109 (1984) in which a private courier finds drugs in a package and shows it to police who test the contents (the search was upheld as valid).</p>\n<p>If the defendant makes that argument, the defendant seeking to exclude the evidence bears the burden of proving by a preponderance of the evidence that the private citizen acted as an agent of the government. <em>U.S. v. Feffer</em>, 831 F.2d 734 (7th Cir. 1987).</p>\n<p>Another case discussed <a href=\"https://www.tdcorg.com/article/but-they-did-it-first-the-private-search-doctrine/\" rel=\"noreferrer\">here</a> notes that:</p>\n<blockquote>\n<p>As it relates to computer files, states still differ on how broad the\napplication of the Private Search Doctrine runs, but all seem to agree\nthat if a document or photo has been opened by a private party, an\nofficer can review that file or photo without a warrant. In <em>People v.\nWilson</em>, 56 Cal. App. 5th 128 (2020), police opened 4 images they\nreceived from NCMEC (the National Center for Missing and Exploited\nChildren) who received the images in a CyberTip from Google. Neither\nNCMEC nor Google had opened these images in this case, but all 4\nimages had been reviewed by Google in the past and identified\npreviously as child porn by their matching hash values. So here, the\nofficer’s actions—consisting of opening the electronic files submitted\nto it by NCMEC and viewing the four images attached to Google’s\nCybertip—did not exactly replicate Google’s private actions. The\nWilson court set out to determine the degree to which the officer’s\nadditional invasion of Wilson’s privacy exceeded the scope of Google’s\nprivate search (the search of his emails against known hash values).\nBefore the officer even received Wilson’s photographs, Google had\nalready reviewed identical images in the past; scanned all of Wilson’s\nelectronic communications to search for content with matching hash\nvalues; flagged four of Wilson’s images as matching images Google had\npreviously observed; classified the matching images as depictions of\nprepubescent minors engaged in sexual acts; forwarded all four images\nto NCMEC as part of a Cybertip report; and terminated Wilson’s\naccount. The Jacobsen case above explained that, “[t]he Fourth\nAmendment is implicated only if the authorities use information with\nrespect to which the expectation of privacy has not already been\nfrustrated.” <em>Id</em>. at 117. Because Google’s actions already frustrated\nany expectation of privacy Wilson possessed in the four photographs at\nissue, no privacy interest remained in the four images, so no\nexpectation of privacy was violated. <em>Wilson</em> at 219. Because the\nassigned hash values, or “digital fingerprints,” are representative of\nthe contents depicted in the photographs themselves, the government\ngained no new material information by viewing the images. The agent\nmerely confirmed Google’s report that Wilson uploaded content\nconstituting apparent child pornography. <em>Id</em>. at 220.</p>\n</blockquote>\n<p>When someone who is not law enforcement obtains evidence illegally, the court sometimes engages in a non-constitutional discretionary balancing test to determine if the evidence is admissible. Sometimes it comes in, sometimes it doesn't. I'll find a case setting forth the exact test if I have time.</p>\n<p>The fact that evidence is &quot;irrefutable&quot; (not that there is any such thing) and widely publicly known is absolutely irrelevant. The fact that a juror knows it would be grounds for excusing the juror for cause and for moving the venue of the trial where they can find enough jurors who aren't familiar with the evidence if they can't manage it in the usual venue.</p>\n", "score": 11 }, { "answer_id": 92558, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<h3>Evidence obtained in a manner that infringes a person's <em>Charter</em> rights is not automatically excluded</h3>\n<p>Evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the <em>Canadian Charter of Rights and Freedoms</em> shall be excluded if it established that, having regard to all circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute: <a href=\"https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art242.html\" rel=\"nofollow noreferrer\"><em>Charter</em>, s. 24(2)</a>.</p>\n<h3>The <em>Grant</em> test</h3>\n<p>The Supreme Court of Canada has developed a three-prong test to judge whether the admission of the evidence would bring the administration of justice into disrepute and thus require exclusion. See <em>R. v. Grant</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do\" rel=\"nofollow noreferrer\">2009 SCC 32</a>. The judge must consider:</p>\n<ol>\n<li>the seriousness of the <em>Charter</em>-infringing conduct;</li>\n<li>the impact of the breach on the <em>Charter</em>-protected interests of the accused; and</li>\n<li>society's interest in the adjudication of the case on its merits.</li>\n</ol>\n<p>Behind each of these is much jurisprudence developing its meaning. I only present the above as a summary.</p>\n<h3>Application to your hypothetical</h3>\n<p>In the circumstance where a &quot;rogue cop&quot; &quot;<em>ignores the law</em> to just obtain the evidence and whistleblow it to the public,&quot; I predict that this would be considered very serious <em>Charter</em>-infringing conduct, towards the most serious infringing conduct imaginable. I also predict the impact of the breach would be considered profoundly intrusive. Breaking into a person's home to obtain evidence is towards the more intrusive breaches of Section 8 of the <em>Charter</em>. And &quot;[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer&quot;: <em>R. v. Morelli</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7847/index.do\" rel=\"nofollow noreferrer\">2010 SCC 8</a>. Given that the seriousness of the <em>Charter</em>-infringing conduct and the impact of the breach on the <em>Charter</em>-protected interests both pull strongly towards exclusion of the evidence, the third line of inquiry will rarely tip the balance in favour of admissibility.</p>\n", "score": 3 }, { "answer_id": 92553, "body": "<p>You need to understand that laws disallowing evidence that was obtained illegally are not there to protect criminals - they are there to protect innocent citizens.</p>\n<p>If Raymond is guilty only in Dan’s sick imagination, then the law wants to protect Raymond from Dan breaking into his home. And the way to do this is to tell Dan quite clearly that if he breaks into Raymond’s house then he will be arrested and punished for breaking and entering, and any evidence found will not be used.</p>\n<p>It is important that finding evidence makes no difference, since Dan is convinced that evidence will be found. So Raymond’s home must be protected by law from any illegal search, whether he is guilty or innocent.</p>\n", "score": 0 }, { "answer_id": 92604, "body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a></p>\n<p>Evidence obtained illegally by non-law-enforcement actors can be used both in criminal and civil trials.</p>\n<h2>Criminal procedure: anything goes</h2>\n<p>There are quite a few &quot;fruit of the poisoned tree&quot;-style exclusion rules, introduced by <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071154/LEGISCTA000006167430/#LEGISCTA000006167430\" rel=\"nofollow noreferrer\">articles 170 through 174-1 of the code of penal procedure</a>. All of them target &quot;acts and pieces of the procedure&quot;. Those include anything done by the prosecution such as police reports, but not acts by private parties outside the criminal procedure. Therefore, third-party evidence falls under the default rules that any piece of evidence can be offered without any specific form. (The evidence can still be discussed in terms of authenticity, probative value and so on.)</p>\n<p>That rule was written down in <a href=\"https://www.legifrance.gouv.fr/juri/id/JURITEXT000025470795?init=true&amp;page=1&amp;query=11-88.118&amp;searchField=ALL&amp;tab_selection=all\" rel=\"nofollow noreferrer\">Cass. crim., 7 mars 2012, n° 11-88.118</a>. It was hardly new at the time, and I believe it is a rather well-settled doctrine at this point. You could argue that the current statute violates ECHR's article 6 right to a fair trial, but that’s a long-shot attempt - the legislator and/or Cour de Cassation will probably not budge until and unless a case succeeds at the ECtHR.</p>\n<p><em>There was <a href=\"https://en.wikipedia.org/wiki/Bettencourt_affair\" rel=\"nofollow noreferrer\">a high-profile case in 2009-2012</a> similar to the hypothetical question in the OP. Liliane Bettencourt, a billionnaire, was secretly (and illegally) recorded by her butler saying incriminating stuff, and the tapes were published by the media. Part of the affair was how, alledgedly, someone in Bettencourt's entourage profited off her senility to extract money out of her. Even though the recordings were 100% illegal, they were used to start judicial procedures against that person.</em></p>\n<h2>Civil procedure: it depends</h2>\n<p>The statutory basis is rather thin and found at <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410102\" rel=\"nofollow noreferrer\">article 9 of the code of civil procedure</a>:</p>\n<blockquote>\n<p>Il incombe à chaque partie de prouver conformément à la loi les faits nécessaires au succès de sa prétention.</p>\n</blockquote>\n<blockquote>\n<p>Each party bears the burden to prove according to law the facts necessary to the success of their claim.</p>\n</blockquote>\n<p>&quot;According to law&quot; is not an extremely detailed explanation of what does and does not fly. My general impression eyeballing the jurisprudence is that clearly illegal stuff (typically: undisclosed phone recordings) gets excluded, but borderline stuff gets admitted.</p>\n<p>A 2021 case, <a href=\"https://www.legifrance.gouv.fr/juri/id/JURITEXT000044327036/\" rel=\"nofollow noreferrer\">Cass. soc. 20-12.263</a>, at least makes it clear that there is no red-line rule. It examined the case of an employer firing an employee for cause using videosurveillance evidence, when the use of the videosurveillance system for the purpose of checking the employee’s activity was illegal. It said that</p>\n<blockquote>\n<p>L'illicéité d'un moyen de preuve (...) n'entraîne pas nécessairement son rejet des débats, le juge devant apprécier si l'utilisation de cette preuve a porté atteinte au caractère équitable de la procédure dans son ensemble, en mettant en balance le droit au respect de la vie personnelle du salarié et le droit à la preuve, lequel peut justifier la production d'éléments portant atteinte à la vie personnelle d'un salarié à la condition que cette production soit indispensable à l'exercice de ce droit et que l'atteinte soit strictement proportionnée au but poursuivi.</p>\n</blockquote>\n<blockquote>\n<p>That a given piece of evidence was illegally obtained (...) does not necessarily exclude it from trial. The judge should evaluate whether the use of that piece of evidence attacked the fairness of the whole procedure, balancing the employee's right to privacy with the right to obtain proof. The latter can justify producing pieces of evidence that violates an employee's privacy, under the condition that this production is absolutely necessary [for the purpose of proof] and that the violation is strictly proportional to the aim.</p>\n</blockquote>\n<p><em>NB: In that exact case, the Cour de Cassation found that the lower court did not evaluate the abovementioned balance (the lower court incorrectly asserted that the videosurveillance was legal and therefore did not consider excluding the evidence). The employee &quot;won&quot; inasmuch as the case was remanded rather than affirmed, but there is a decent chance that the lower court will find for the employer anyway after doing the balancing act.</em></p>\n", "score": 0 } ]

[ "united-states", "criminal-law", "evidence", "rules-of-evidence", "warrant" ]

[ { "answer_id": 92601, "body": "<blockquote>\n<p>What would happen?</p>\n</blockquote>\n<p>Nothing.</p>\n<p>The Courts would deem it to be a political question that was decisively and conclusively resolved when Congress ratified the electoral vote and the President was sworn in.</p>\n<p>To the extent that there was a possibility of challenging it, this would be considered untimely not later than the end of the President's term.</p>\n", "score": 3 }, { "answer_id": 92586, "body": "<p>In the hypothetical past, some person could petition for writ of <a href=\"https://www.law.cornell.edu/wex/quo_warranto\" rel=\"nofollow noreferrer\">quo warranto</a>, and if your alternative reality can be proven, the person may be removed from office, indeed this happened a half a year ago in New Mexico, with reference to Section 3 of the 14th Amendment. This would have no effect on the law and other actions taken while he was president, it would only impact his ability to appoint future judges and sign future laws. As far as I know, the Supreme Court has never entertained any such writ w.r.t. qualification for federal office.</p>\n", "score": 2 } ]

[ "us-constitution", "elections", "us-president" ]

[ { "answer_id": 92597, "body": "<p>Infamously, the Supreme Court majority in <a href=\"https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization\" rel=\"nofollow noreferrer\"><em>Dobbs v. Jackson Women's Health Organization</em></a>, <a href=\"https://www.law.cornell.edu/supremecourt/text/19-1392\" rel=\"nofollow noreferrer\">No. 19-1392 (2022)</a> cited English law from as long ago as the 13th century in order to inform their analysis of abortion. While this opinion has been widely criticized, it still represents a prominent recent use of pre-independence English common law. A quoted statement from <a href=\"https://en.wikipedia.org/wiki/Henry_de_Bracton\" rel=\"nofollow noreferrer\">Henry de Bracton</a>'s <em>De Legibus et Consuetudinibus Angliae</em>, probably written in the 1230s, must surely count as the oldest piece of common law heritage to be used by the Supreme Court in recent years:</p>\n<blockquote>\n<p>[If one has] struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide. (trans. T. Twiss, 1879, as cited in the case)</p>\n</blockquote>\n<blockquote>\n<p>Si sit aliquis qui mulierem prægnantem percusserit vel ei venenum dederit, per quod fecerit abortivum, si puerperium iam formatum vel animatum fuerit, et maxime si animatum, facit homicidium. (Original Latin text, from the edition by G. E. Woodbine, 1923)</p>\n</blockquote>\n<p>Justice Alito's opinion also cites case law, such as <em>R v. Webb</em> (Q.B. 1602). He did not consider himself to be <em>bound</em> by such cases, or by Bracton, but he did use them as part of an argument that there was no historical common-law right to an abortion. If there were one, then it would be potentially capable of Constitutional protection and any U.S. domestic law would have to give way. But the historical common law, on its own, could not override a federal or state statute in that manner: it is just being studied in order to understand the scope of what the Constitution requires.</p>\n<p>Less controversially, certain English cases relating to civil liberties continue to be cited in recent U.S. decisions, although again not as &quot;binding precedent&quot;. They are used to help illuminate the historical context behind provisions of the U.S. Constitution - which <em>is</em> the supreme law of the United States - rather than because they themselves are authoritative in that way.</p>\n<p>For example, in the case of <a href=\"https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)\" rel=\"nofollow noreferrer\"><em>United States v. Jones</em></a>, <a href=\"https://supreme.justia.com/cases/federal/us/565/400/\" rel=\"nofollow noreferrer\">565 U.S. 400 (2012)</a>, the Supreme Court had to consider whether installation of a GPS tracker on Jones's car was done in violation of the Fourth Amendment. That provision of the Constitution, enacted long before the invention of GPS or cars, says</p>\n<blockquote>\n<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p>\n</blockquote>\n<p>The majority opinion by Justice Scalia begins by calling back to a famous English case of 1765, known to have been influential for the drafting of this amendment:</p>\n<blockquote>\n<p>We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886) ). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:\n“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.</p>\n</blockquote>\n<p>Note that Justice Scalia is careful about his language here. He is not treating Lord Camden's opinion in <em>Entick</em> as binding precedent, to be applied to the facts in the <em>Jones</em> case. What he is doing is affirming a line of Supreme Court authority, in particular the 1886 case of <em>Boyd</em> in which Justice Bradley used pre-Revolution cases from England to characterize the Fourth Amendment's relation to personal property. It is the Fourth Amendment which provides the standard by which the police's conduct could be judged. The English case is important for understanding what the Amendment really means, but is cited here mainly for rhetorical effect.</p>\n<p>In the same way, lower courts in the U.S. are not bound by <em>Entick</em> directly, but they are bound by the Supreme Court's analysis of the Fourth Amendment in its various cases. That analysis is informed by <em>Entick</em> and so other courts may also consider it to be persuasive or useful, although they would very rarely have to reach back to &quot;first principles&quot; rather than more recent applicable precedent.</p>\n<p>Similar cases on search and seizure can be decided without reference to English authority. For example, the majority opinion in <a href=\"https://en.wikipedia.org/wiki/Carpenter_v._United_States\" rel=\"nofollow noreferrer\"><em>Carpenter v. United States</em></a>, <a href=\"https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf\" rel=\"nofollow noreferrer\">138 S. Ct. 2206 (2018)</a> contains a few passing references to the general history and scope of the Fourth Amendment, including a citation of <em>Boyd</em>, but doesn't delve into any deep exegesis using historical English law. Some of the dissenting opinions do - between Justices Thomas, Alito and Gorsuch, we see citations of <em>Entick</em>, of cases of comparable vintage such as <em>Wilkes v. Wood</em> 19 How. St. Tr. 1153 (K. B. 1763), and of learned treatises by Locke, Blackstone, and Coke.</p>\n", "score": 2 }, { "answer_id": 92587, "body": "<h2>There are many, but they mostly date from the 18th and 19th centuries</h2>\n<p>Each of the states except Louisiana (a civil law jurisdiction) passed statutes &quot;receiving&quot; English <a href=\"https://en.wikipedia.org/wiki/Law_of_the_United_States#American_common_law\" rel=\"nofollow noreferrer\">common law</a> to the extent that it is not repugnant to domestic law or indigenous conditions, or expressly forbidden (like bills of attainder).</p>\n<p>In the early post-revolution period, English case law was commonly cited because:</p>\n<ol>\n<li>Local appeals courts had not yet made many decisions, and</li>\n<li>English cases were more widely reported and therefore more available even on the western side of the Atlantic.</li>\n</ol>\n<p>This became less and less common as American precendents were set and more widely distributed.</p>\n<blockquote>\n<p>Today, in the words of Stanford law professor Lawrence M. Friedman: &quot;American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention.&quot;</p>\n</blockquote>\n<p>When they do, they are usually citing principles that are so basic that they could go without saying.</p>\n", "score": 1 } ]

[ "united-states", "england-and-wales", "common-law" ]

[ { "answer_id": 92596, "body": "<p>For raw drinking milk (RDM), read the government's <a href=\"https://www.food.gov.uk/business-guidance/raw-drinking-milk-guidance\" rel=\"nofollow noreferrer\">Raw Drinking Milk Guidance</a>. In England and Wales, Frank's raw milk containers must be labelled with the words &quot;raw milk&quot;. They must also carry this warning:</p>\n<blockquote>\n<p>This milk has not been heat-treated and may therefore contain\norganisms harmful to health.</p>\n</blockquote>\n<p>In Wales the container or the point of sale must <em>also</em> display the following:</p>\n<blockquote>\n<p>The Food Standards Agency strongly advises that it should not be\nconsumed by children, pregnant women, older people or those who are\nunwell or have chronic illness.</p>\n</blockquote>\n<p>Abdul's loose produce must be displayed with labels depending on whether the produce falls under the Specific Marketing Standard (SMS) or General Marketing Standard (GMS) or neither. Read the <a href=\"https://www.gov.uk/guidance/comply-with-marketing-standards-for-fresh-fruit-and-vegetables\" rel=\"nofollow noreferrer\">guidance on Fresh fruit and vegetable marketing standards</a>.</p>\n<p>For loose produce to which the SMS applies, the label must show:</p>\n<ul>\n<li>the country of origin in full (do not use abbreviations or flags)</li>\n<li>quality class</li>\n<li>variety or type (if required)</li>\n</ul>\n<p>For loose produce to which the GMS applies, the label must only show the country of origin.</p>\n<p>The above labelling requirements do not apply to loose produce to which neither the SMR nor GMS apply (e.g. coconuts).</p>\n", "score": 2 } ]

[ "england-and-wales", "food" ]

[ { "answer_id": 92534, "body": "<p>There are potential constitutional challenges to the bill, but as noted by <a href=\"https://law.stackexchange.com/a/92533/9517\">the answer from user6726</a>, a bill of attainder challenge would not be a very strong one. Better arguments that the legislation is unconstitutional would include (in approximate order of legal strength) arguments that:</p>\n<ul>\n<li><p>it violates the &quot;<a href=\"https://en.wikipedia.org/wiki/Dormant_Commerce_Clause\" rel=\"noreferrer\">dormant commerce clause</a>&quot; by unduly regulating interstate commerce,</p>\n</li>\n<li><p>it is <a href=\"https://www.brookings.edu/blog/techtank/2019/07/18/why-national-preemption-has-become-a-technology-policy-flash-point/\" rel=\"noreferrer\">pre-empted by federal statutes</a> which have &quot;occupied the field&quot; of social media regulation (e.g. with the <a href=\"https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act\" rel=\"noreferrer\">Digital Millennium Copyright Act</a>),</p>\n</li>\n<li><p>it purports to make foreign policy which is in <a href=\"https://crsreports.congress.gov/product/pdf/LSB/LSB10808\" rel=\"noreferrer\">the exclusive jurisdiction of the federal government</a> (in connection with its &quot;any country designated as a foreign adversary&quot; provision),</p>\n</li>\n<li><p>it is effectively regulating conduct outside the territorial scope of the state's authority to regulate conduct (a new SCOTUS case law doctrine from the <a href=\"https://www.supremecourt.gov/opinions/22pdf/21-468_5if6.pdf\" rel=\"noreferrer\">California pork regulation case</a> decided this month), and</p>\n</li>\n<li><p>it unduly burdens free speech since TikTok is analogous to a <a href=\"https://www.mtsu.edu/first-amendment/article/1150/taxation-of-newspapers\" rel=\"noreferrer\">modern magazine or newspaper</a> and is regulated more heavily than non-expressive content on a non-content neutral basis.</p>\n</li>\n</ul>\n", "score": 15 }, { "answer_id": 92533, "body": "<p>In light of extant case law, this is not a Bill of Attainder. <a href=\"https://scholar.google.com/scholar_case?case=11884364268460571560&amp;q=351%20F.3d%201198&amp;hl=en&amp;as_sdt=20006#p468\" rel=\"noreferrer\">Nixon v. Administrator of General Services</a>, 433 US 425 identifies the essential characteristic of such a forbidden bill:</p>\n<blockquote>\n<p>a law that legislatively determines guilt and inflicts punishment upon\nan identifiable individual without provision of the protections of a\njudicial trial</p>\n</blockquote>\n<p>This case was in response to a bill passed by congress directing the Administrator of\nGeneral Services to take custody of Nixon’s presidential papers and tape recordings, specifically identifying Nixon by name. The court rejected an argument that\n&quot;an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes&quot;. The crucial question is whether the bill enacts a &quot;punishment&quot;. Analogous to the prohibition of using products by Kaspersky Labs (<a href=\"https://scholar.google.com/scholar_case?case=3556115024232984424&amp;q=909%20F.3d%20446&amp;hl=en&amp;as_sdt=20006\" rel=\"noreferrer\">Kaspersky Lab, Inc. v. US Dept. of Homeland Sec.</a>, 909 F. 3d 446) where Congress prohibited using those products in certain government computers but it was found that the restriction &quot;is not a punishment but a prophylaxis necessary to protect federal computer systems from Russian cyber-threats&quot;, the Montana law is not a punishment, it is prophylaxis necessary to protect the citizens of Montana from a threat (per the Montana legislature). No person is found guilt of a crime by this law – any punishment (the daily fine for violating the law) is determined based on general principles of law not legislative fiat, and is imposed by a court of law after a trial. If you violate this law, you will be tried in court and if found guilty, you will be punished – hence the law is not a bill of attainder.</p>\n", "score": 13 } ]

[ "us-constitution", "montana" ]

[ { "answer_id": 92505, "body": "<p>The appellate court reviews based upon the trial court record.</p>\n<p>To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is <em>de novo</em>. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed <em>de novo</em>. So are procedural question, like whether an evidentiary hearing should have been held.</p>\n<p>But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record.</p>\n<p>Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, <a href=\"https://www.govinfo.gov/content/pkg/USCOURTS-njd-3_21-cv-12986/pdf/USCOURTS-njd-3_21-cv-12986-0.pdf\" rel=\"nofollow noreferrer\">in this case</a> and <a href=\"https://www.govinfo.gov/content/pkg/USCOURTS-njd-2_19-cv-13545/pdf/USCOURTS-njd-2_19-cv-13545-0.pdf\" rel=\"nofollow noreferrer\">in this case</a>, an appellate court often does engage in <em>de novo</em> review.</p>\n<p>But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled.</p>\n<p>While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in <a href=\"https://www.njcourts.gov/sites/default/files/courts/appellatestandards.pdf\" rel=\"nofollow noreferrer\">this document</a> quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact.</p>\n<blockquote>\n<ol>\n<li><p>Appellate courts &quot;review de novo the trial court's judgment\n<strong>dismissing the complaint and compelling arbitration</strong>.&quot; Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer,\nInc., 244 N.J. 30, 46 (2020).</p>\n</li>\n<li><p>&quot;Under N.J.S.A. 2A:24-7, either party <strong>may move to confirm an award</strong> within three months of the date of its delivery. Once\nconfirmed, the award is as conclusive as a court judgment. N.J.S.A.\n2A:24-10.&quot; Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N.\nHaledon, 158 N.J. 392, 398 (1999).</p>\n</li>\n<li><p>N.J.S.A. 2A:24-8 provides a court <strong>may vacate an arbitration award</strong> for: 1) corruption, fraud or undue means; 2) evident\npartiality or corruption in the arbitrators; 3) misconduct in refusing\nto postpone the hearing, upon sufficient cause being shown, or in\nrefusing to hear evidence, pertinent and material to the controversy,\nor of any other misbehaviors prejudicial to the rights of any party;\nor 4) the arbitrators exceeded or so imperfectly executed their powers\nthat a mutual, final and definite award upon the subject matter\nsubmitted was not made.</p>\n</li>\n<li><p>&quot;Judicial review <strong>of an arbitration award</strong> is very limited.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting\nLinden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J.\n268, 276 (2010)). &quot;To foster finality and 'secure arbitration's speedy\nand inexpensive nature,' reviewing courts must give <strong>arbitration awards</strong>\n'considerable deference.'&quot; Borough of Carteret v. Firefighters Mut.\nBenevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough\nof E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02\n(2013)). &quot;[A]n arbitrator's award resolving a public sector dispute\nwill be accepted so long as the award is 'reasonably debatable.'&quot;\nBorough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67,\n247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E.\nRutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). &quot;An arbitrator's\naward is not to be cast aside lightly. It is subject to being vacated\nonly when it has been shown that a statutory basis justifies that\naction.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017)\n(quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221\n(1979)).</p>\n</li>\n<li><p>Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set &quot;strict limits on the\nappeal <strong>of an arbitration award.</strong>&quot; Riverside Chiropractic Grp. v.\nMercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008).</p>\n</li>\n</ol>\n</blockquote>\n<p>In support of a contrary view that even the findings of fact of the trial court are subject to <em>de novo</em> review are statements like this one (from <a href=\"https://www.criminalcivillawyer.com/wp-content/uploads/Arbitration-Clauses.pdf\" rel=\"nofollow noreferrer\">this case</a>):</p>\n<blockquote>\n<p>The existence of a valid and enforceable arbitration agreement poses a\nquestion of law, and as such, our standard of review of an order\ndenying a motion to compel arbitration is <em>de novo</em>. <em>Hirsch v. Amper\nFin. Servs., L.L.C.</em>, 215 N.J. 174, 186 (2013); <em>Frumer v. Nat'l Home\nIns. Co</em>., 420 N.J. Super. 7, 13 (App. Div. 2011).</p>\n</blockquote>\n<p>But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely <em>dicta</em> as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2).</p>\n<p><em>Hirsch</em> was <a href=\"https://casetext.com/case/hirsch-v-amper-fin-servs-2\" rel=\"nofollow noreferrer\">decided in motion practice without an evidentiary hearing</a> (<em>see</em> page 184) and the case itself says (at page 186):</p>\n<blockquote>\n<p>Orders compelling arbitration are deemed final for purposes of appeal.\nR. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011).\n<strong>We review those legal determinations de novo</strong>. See Manalapan Realty,\nL.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230\n(1995) (“A trial court's interpretation of the law and the legal\nconsequences <strong>that flow from established facts</strong> are not entitled to any\nspecial deference.”).</p>\n</blockquote>\n<p>The decision in <em>Frummer</em> was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in <em>Frummer</em> said at page 13:</p>\n<blockquote>\n<p>We review the denial of a request for arbitration <em>de novo</em>. See Alfano\nv. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div.\n2007). &quot;A `trial court's interpretation of the law and the legal\nconsequences <strong>that flow from established facts</strong> are not entitled to\nany special deference.'&quot; Id. at 573, 925 A.2d 22 (quoting Manalapan\nRealty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d\n1230 (1995)).</p>\n</blockquote>\n<p><em>See also</em> <a href=\"https://law.justia.com/cases/new-jersey/appellate-division-published/2015/a2502-14.html\" rel=\"nofollow noreferrer\">this case</a> stating that:</p>\n<blockquote>\n<p>The existence of a valid and enforceable<br />\narbitration agreement poses a question of law, and as such, our\nstandard of review of an order denying a motion to compel arbitration\nis <em>de novo</em>. <em>Hirsch v. Amper Fin. Servs., LLC</em>,<br />\n215 N.J. 174, 186 (2013); <em>Frumer v. Nat'l Home Ins. Co</em>.,\n420 N.J. Super. 7, 13 (App. Div. 2011).</p>\n</blockquote>\n<p>Again, however, I would question whether this holding is <em>dicta</em> because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing.</p>\n", "score": 5 } ]

[ "united-states", "evidence", "trial", "appeal", "arbitration" ]

[ { "answer_id": 92572, "body": "<p>The only <em>specific</em> prohibition of &quot;backing&quot; is at <a href=\"https://www.ontario.ca/laws/statute/90h08#BK263\" rel=\"noreferrer\">s. 157 of the <em>Highway Traffic Act</em></a>:</p>\n<blockquote>\n<p>157 (1) No driver of a vehicle shall back the vehicle upon the roadway or shoulder of any highway divided by a median strip¹ on which the speed limit is in excess of 80 kilometres per hour ...</p>\n</blockquote>\n<p>However, there is a careless driving prohibition:</p>\n<blockquote>\n<p>130 (1) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.</p>\n</blockquote>\n<p>And there is the <em>Criminal Code</em>'s dangerous driving offence:</p>\n<blockquote>\n<p>320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.</p>\n</blockquote>\n<p>It would be misleading to say that it is <em>absolutely</em> &quot;legal&quot; or &quot;allowed&quot; to &quot;drive in reverse on a non-divided road that has a speed limit of more than 80 km/h&quot;. It just isn't prohibited by s. 157(1) of the <em>Highway Traffic Act</em>.</p>\n<hr />\n<p>^{1. Note that &quot;divided&quot; in the question was just a paraphrase of &quot;divided by a median strip.&quot; There are many sections of road in Ontario that are not divided in that sense, with speed limits above 80 km/h, including much of the trans-Canada highway.}</p>\n", "score": 26 }, { "answer_id": 92580, "body": "<p>I would interpret the rules, including those that address divided highways, as saying:</p>\n<ol>\n<li><p>It is unlawful to operate a vehicle in a manner that is needlessly unsafe.</p>\n</li>\n<li><p>Going backward on areas that are in or adjacent to traffic lanes with a speed limit of 80mph or higher is <em>presumptively</em> needlessly unsafe.</p>\n</li>\n</ol>\n<p>Situations may arise in which a vehicle would have no practical alternative except to drive backward for some distance on the shoulder of a high-speed divided road. If a collision occurs in the middle of the road and a motorist manages to stop just a foot or two before it, the normal prohibition against backing up would not be interpreted as forbidding the motorist from backing up <em>to the extent necessary to clear the obstruction</em>.</p>\n<p>I would guess that rules about road design probably require the posting of speed limits below 80km/h on divided carriageways which are adjacent to parking spaces or directly connected to driveways. If a narrow driveway is connected to a road, it generally be expected that people would back from the driveway onto the road. Motorists should make reasonable effort to avoid traveling backward further than necessary, but there are generally no precise rules because it's imposslble to anticipate what courses of action would or would not be practical in every imaginable scenario.</p>\n", "score": 4 } ]

[ "canada", "driving", "regulations", "ontario" ]

[ { "answer_id": 92563, "body": "<p>The legal question is whether you would be vicariously liable for copyright infringement, by distributing this software. You can read <a href=\"https://www.ce9.uscourts.gov/jury-instructions/node/277\" rel=\"nofollow noreferrer\">here</a> the requirements for vicarious liability, the principles having been established by cases such as <a href=\"https://supreme.justia.com/cases/federal/us/545/913/\" rel=\"nofollow noreferrer\">MGM v. Grokster</a>, A&amp;M Records v. Napster, Perfect10 v. Giganews. First, someone else must be found guilty of copyright infringement. Then, the plaintiff must prove that you directly benefited financially from the infringement, that you had the right or ability to supervise or control the infringement, and you failed to do so.</p>\n<p>You say you are not benefiting financially from infringement by others which would defeat an argument for vicarious infringement, but &quot;not benefiting financially&quot; is broader than &quot;doesn't charge the user&quot; (ad revenue is a financial benefit, as relevant to Grokster). Even if you were benefiting financially, it's not obvious that you can control what others do with your software. The primary holding in Grokster is</p>\n<blockquote>\n<p>that one who distributes a device with the object of promoting its use\nto infringe copyright, as shown by clear expression or other\naffirmative steps taken to foster infringement, is liable for the\nresulting acts of infringement by third parties</p>\n</blockquote>\n<p>Grokster does not resolve a number of issues (which were raised in the concurring opinions) as to the role of non-infringing uses of software. We know that Grokster intended the software to be used to infringe copyright, we do not know whether your software has a non-infringing use. The court mentions the earlier finding that &quot;distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement&quot;, which they don't reject and partially support saying</p>\n<blockquote>\n<p>in the absence of other evidence of intent, a court would be unable to\nfind contributory infringement liability merely based on a failure to\ntake affirmative steps to prevent infringement, if the device\notherwise was capable of substantial noninfringing uses. Such a\nholding would tread too close to the Sony safe harbor.</p>\n</blockquote>\n", "score": 2 }, { "answer_id": 92575, "body": "<p>Aside from what user6726 discusses, there's also an issue when software basically exists to aid and abet a user's violation of Terms of Service. This is what gets all the MMO bot software in trouble. MMO makers have prevailed on claims of <em>tortious interference</em>, which means party A and party B have a contract (the ToS), and party C is interfering with their contract by tempting users to violate. Their success at applying tortious interference is notable because it's a very hard claim to prove, with 7 elements that all must be shown.</p>\n<p>The only issue I can really see is if your software enables people who don't own a copy of the game to just download an illegal copy off BitTorrent etc. Then, you may be seen as abetting copyright infringement.</p>\n<p>Well, if it is a server based game such as an MMO - if you wanted to create a &quot;private server&quot; for, say, <em>Tabula Rasa</em> -that might be legally complicated.</p>\n", "score": 2 } ]

[ "copyright", "software", "hacking", "video-games" ]

[ { "answer_id": 92573, "body": "<p>The attorney would consider <a href=\"https://www.courts.wa.gov/court_rules/pdf/RPC/GA_RPC_01_14_00.pdf\" rel=\"nofollow noreferrer\">RPC 1.14</a>, which means that he &quot;shall, as far as reasonably possible, maintain a normal client-lawyer\nrelationship with the client&quot;. But if he</p>\n<blockquote>\n<p>reasonably believes that the client has diminished capacity...and\ncannot adequately act in [his] own interest, the lawyer may take\nreasonably necessary protective action, including consulting with\nindividuals or entities that have the ability to take action to\nprotect the client and, in appropriate cases, seeking the appointment\nof a guardian ad litem, conservator or guardian.</p>\n</blockquote>\n<p>So...</p>\n<blockquote>\n<p>The testator must know the natural objects of their bounty (i.e., be\naware of their spouse and children, if any).</p>\n<p>The testator must comprehend the kind and character of their property\n(i.e., know approximately their net worth and what kind of assets they\nown).</p>\n<p>The testator must understand the nature and effect of the act (i.e.,\nrealize that it is indeed a will they are signing and what that\nmeans).</p>\n<p>The testator must be able to make a disposition of their property\naccording to a plan formed in their mind.</p>\n</blockquote>\n", "score": 3 } ]

[ "united-states", "family-law", "wills", "new-jersey" ]

[ { "answer_id": 92388, "body": "<h2>not in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<p>Germany has laws about founding, operating and financing political parties, the <a href=\"https://www.bmi.bund.de/DE/themen/verfassung/parteienrecht/informationen-zur-parteigruendung/informationen-zur-parteigruendung-node.html\" rel=\"nofollow noreferrer\">Parteiengesetz</a> which demands certain organisatorial structures, and the <a href=\"https://www.bmi.bund.de/DE/themen/verfassung/parteienrecht/parteienfinanzierung/parteienfinanzierung.html\" rel=\"nofollow noreferrer\">Parteifinanzierungsgesetz</a>, which is very explicit about how they can finance themselves and what a party needs to report. The only allowed gains are property proceeds (like from owning property or selling goods), membership fees, gifts to the party, and state sponsorship. Also, non-citizens are not allowed to give to a party unlimitedly. The parties also are also obligated under the basic law to report all financing they get, down to the cent. Their organisation form is strictly limited:</p>\n<blockquote>\n<p>Parteien sind frei gebildete <strong>Personenvereinigungen</strong> im Sinne des Artikels 9 Absatz 1 GG, die sich auf der Basis des privaten Rechts nach den <strong>vereinsrechtlichen Regelungen des Bürgerlichen Gesetzbuches</strong> (§§ 21 bis 79 Bürgerliches Gesetzbuch - BGB) gründen. Sie sind in der Regel nicht rechtsfähige Vereine</p>\n</blockquote>\n<p>This precludes them from being Aktiengesellschaften: they have to be <em>organizations of people</em> (Personenvereinigungen) that follow the BGB, and thus are not allowed to organize as an AG under the <a href=\"https://www.gesetze-im-internet.de/aktg/\" rel=\"nofollow noreferrer\">Aktiengesetz</a>, which demands that an AG to not be an organization of people. So, a party can't be a stock company, and selling stock in a political party in Germany is not allowed under the framework and is thus neither possible nor legal.</p>\n", "score": 4 }, { "answer_id": 92387, "body": "<h2>Political parties <em>are</em> public</h2>\n<p>They just aren’t public <em>companies</em>.</p>\n<p>Their organisational structure is similar to clubs - the are operated by and for the benefit of their members and, subject to their rules, they are open for anyone to join.</p>\n", "score": 3 }, { "answer_id": 92390, "body": "<p>In the US, most elected officials are state or local officials, and even elections for federal officials (representative in Congress, senator, and president) are conducted mostly under state law (with a few federal laws as well). Accordingly most regulation of political parties is done at the state level. As an example, the Vermont Secretary of State provides a <a href=\"https://sos.vermont.gov/elections/election-info-resources/parties/\" rel=\"nofollow noreferrer\">web page</a> with an overview of political parties.</p>\n<p>In short, political parties must be organized in accordance with state law. Public notices must be provided informing the public about meetings of political parties so they can attend the meetings. Certain results of party meetings must be reported to the state. Funds used for political campaigns are heavily regulated.</p>\n", "score": 3 } ]

[ "united-states", "constitutional-law", "us-constitution", "lawyer", "judge" ]

[ { "answer_id": 92571, "body": "<p><a href=\"/questions/tagged/virginia\" class=\"post-tag\" title=\"show questions tagged &#39;virginia&#39;\" aria-label=\"show questions tagged &#39;virginia&#39;\" rel=\"tag\" aria-labelledby=\"tag-virginia-tooltip-container\">virginia</a></p>\n<p><a href=\"https://www.dmv.virginia.gov/webdoc/pdf/dmv39c.pdf\" rel=\"noreferrer\">Virginia Driver's Manual, section 2</a> on page 11 states:</p>\n<blockquote>\n<p>White lane arrows are curved or straight. If you are in a lane marked\nwith a curved arrow <strong>or</strong> a curved arrow and the word ONLY, you must turn\nin the direction of the arrow. If your lane is marked with both a\ncurved and straight arrow, you may turn or go straight.</p>\n</blockquote>\n<p>The lane marking doesn't have to include the word only. A curved arrow is sufficient.</p>\n<p>The above is from the second paragraph of the section on <strong>solid white lines</strong> on page 11. The first paragraph includes:</p>\n<blockquote>\n<p>Arrows used with white lines indicate which turn may be made from the\nlane.</p>\n</blockquote>\n<p>Earlier in the document, it briefly mentions signs that sign lane turning directions but there's no information on whether signs are required in addition to lane markings.</p>\n", "score": 13 }, { "answer_id": 92567, "body": "<h2>You must turn</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged &#39;australia&#39;\" aria-label=\"show questions tagged &#39;australia&#39;\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>The <a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0758#sec.92\" rel=\"noreferrer\">road rules</a> state:</p>\n<blockquote>\n<p><strong>92 Traffic lane arrows</strong></p>\n<p>(1) If a driver is driving in a marked lane at an intersection (except a roundabout) and there are traffic lane arrows applying to the lane, the driver must—</p>\n<p>(a) if the arrows indicate a single direction—drive in that direction, or</p>\n<p>(b) if the arrows indicate 2 or more directions—drive in one of those directions.</p>\n</blockquote>\n", "score": 6 } ]

[ "traffic", "driving", "virginia" ]

[ { "answer_id": 92565, "body": "<p><a href=\"https://law.justia.com/codes/mississippi/2020/title-91/chapter-7/\" rel=\"noreferrer\">Mississippi law</a> says that (MS Code §91-7-5)</p>\n<blockquote>\n<p>The chancery court of the proper county, on being informed that any\nperson has the last will and testament of a testator or testatrix, may\ncompel such person to produce it</p>\n</blockquote>\n<p>You cannot administer a will without first filing it. The court will care about the original will, which will either be declared valid or invalid. An interested person could contest the validity of the will, and if the reasons are sufficient, the will could be set aside in which case (barring the later discovery of a valid will), the estate is divided according to Mississippi's intestate succession laws.</p>\n<p>When the will is filed in court, you can obtain a copy from the clerk for a small fee.</p>\n", "score": 6 } ]

[ "wills", "mississippi" ]

[ { "answer_id": 92338, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>It depends on Alice's belief about who Mallory is and what Mallory is doing and whether Alice's force was reasonable.</p>\n<p>If Alice is aware that Mallory's action is lawful, then Alice cannot use force to protect Bob. Is Mallory a doctor who is lawfully withdrawing treatment? (You say there is &quot;no law allowing Mallory to disconnect Bob's life support&quot; but I'm not aware of a jurisdiction that requires indefinite treatment regardless of the circumstances.)</p>\n<p>If Alice honestly believes Mallory is attempting to unlawfully kill Bob, Alice can use force to protect Bob. Is Bob on life support because of Mallory's previous attempt on his life; is Mallory a hitman, a vengeful spouse or some other person with no lawful reason to kill Bob?</p>\n<p><a href=\"https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime\" rel=\"noreferrer\">Crown Prosecution Service guidance: Self-Defence and the Prevention of Crime</a>:</p>\n<blockquote>\n<p>Self-defence is available as a defence to crimes committed by use of\nforce.</p>\n<p>The basic principles of self-defence are set out in Palmer v R, [1971]\nAC 814; approved in R v McInnes, 55 Cr App R 551:</p>\n<p>&quot;It is both good law and good sense that a man who is attacked may\ndefend himself. It is both good law and good sense that he may do, but\nonly do, what is reasonably necessary.&quot;</p>\n<p>The common law approach as expressed in Palmer v R is also relevant to\nthe application of section 3 Criminal Law Act 1967:</p>\n<p>&quot;A person may use such force as is reasonable in the circumstances in\nthe prevention of crime, or in effecting or assisting in the lawful\narrest of offenders or suspected offenders or of persons unlawfully at\nlarge.&quot; ...</p>\n</blockquote>\n<blockquote>\n<p>In assessing the reasonableness of the force used, prosecutors should ask two questions:</p>\n<ul>\n<li>was the use of force necessary in the circumstances, i.e. Was there a need for any force at all?; and</li>\n<li>was the force used reasonable in the circumstances?</li>\n</ul>\n<p>The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).</p>\n<p>To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.</p>\n</blockquote>\n", "score": 26 }, { "answer_id": 92339, "body": "<h2>It depends a tad in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>...</h2>\n<h3>Mallory is staff ordered to shut off Life Support</h3>\n<p>There are cases where life support can be turned off. The two most relevant cases are:</p>\n<ul>\n<li>the conscious patient telling the doctor,</li>\n<li>or the unconscious patient having a <em>Patientenverfügung</em>, that demands no life support is performed.</li>\n</ul>\n<p>The moment the patient says so or the properly documented paper is in the hands of the doctors for an unconscious patient, they have to end all life-prolonging measures, and shut off life support - in fact, they are not even allowed to start such measures once they are informed of the wish for it.</p>\n<p>In a similar fashion, in the absence of such a document and with an unconscious patient, the next of kin might have the life support shut off at some point if they can make it clear that such treatment is against the patient's wishes.</p>\n<p><a href=\"https://www.doctors.today/home/a/beatmungsgeraet-abschalten-eine-straftat-1646474\" rel=\"nofollow noreferrer\">In Germany, turning off the Life support is <strong>not</strong> (active) euthanasia (which is illegal) but <em>Behandlungsabbruch</em> (<em>end of a medical procedure</em>), which is defined as the not providing or ending of procedures that could prolong life</a>. <em>Behandlungsabbruch</em> is not a crime, if demanded by the patient or the next of kin can make it clear that it would have been the wish of the patient. In fact, it becomes a crime to <strong>not</strong> turn off the machines the moment that the wish of the patient not to be kept alive is made clear, either by the patient, his <em>Patientenverfügung</em>, or verified by the next of kin.</p>\n<p>Because Mallory is <strong>not</strong> committing any crime in case he is acting on the Patient's wish (expressed by the conscious patient, unconscious patient's <em>Patientenverfügung</em> or unconscious patient's next of kin in absence of a <em>Patientenverfügung</em>), Alice can't legally use <strong>any</strong> force against Mallory.</p>\n<h3>Mallory is just out there to murder</h3>\n<p>Simple case: yes, she may use a reasonable amount of force to stop Mallory. <a href=\"https://law.stackexchange.com/a/92391/10334\">In fact, she is <strong>obligated</strong> to assist, as long as she is not in danger from that.</a></p>\n", "score": 15 }, { "answer_id": 92336, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Alice found Mallory commiting an indictable offence, so Alice can arrest Mallory, using reasonable force. See <em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-494.html\" rel=\"noreferrer\">s. 494</a>.</p>\n", "score": 8 }, { "answer_id": 92391, "body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>\nNot only is it legal: In Germany, Alice is actually <strong>legally obliged</strong> to do anything that can be reasonably expected from her in order to stop Mallory. <a href=\"https://www.gesetze-im-internet.de/stgb/__323c.html\" rel=\"nofollow noreferrer\">§ 323c StGB</a> states:</p>\n<blockquote>\n<p>(1) Wer bei Unglücksfällen oder gemeiner Gefahr oder Not nicht Hilfe leistet, obwohl dies erforderlich und ihm den Umständen nach zuzumuten, insbesondere ohne erhebliche eigene Gefahr und ohne Verletzung anderer wichtiger Pflichten möglich ist, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft.</p>\n</blockquote>\n<p><em>(Anybody who does not render assistance in cases of grave danger or an emergency, even though it is necessary and within reason, will be put in prison for up to one year or will be fined.)</em></p>\n<p>In particular, nobody needs to put themselves in serious danger in order to help. Therefore, if Mallory is armed or is raving mad and smashing things left and right you don't have to put yourself in harm's way (but you should still seek help and alert the\nauthorities).</p>\n<p>This legal obligation to render assistance is peculiar to the law systems in the French civil law tradition. By contrast, in jurisdictions in the British common law tradition such an obligation usually does not exist for third parties unrelated to the incident; it only exists for individuals connected to one of the parties or bearing responsibility for the incident.</p>\n", "score": 4 }, { "answer_id": 92392, "body": "<p>U.S.:</p>\n<p>The United States has some very robust self-defense laws, which would make Alice's actions perfectly legal. Typically, U.S. self-defense/defense of other laws will cover the minimum amount of force required to prevent a crime from occurring, up to and including lethal force, though because of the U.S. federal nature different states have different laws. New York, for example, requires that the level of force used be proportional to the criminal threat, however, considering the crime is 1st degree murder, lethal force can be used to prevent this type of crime.</p>\n<p>In the U.S., it's not uncommon for armed police to remain at hospitals, even outside the door of the patient, especially if they are to be taken into custody (either as an arrest or protective custody... Bob could be a criminal or a witness who a criminal would want to end, as Bob could provide evidence against the criminal targeting him.).</p>\n<p>Globally, some of the deadliest serial killers are called &quot;Angels of Mercy&quot; (or &quot;Angels of Death&quot;), who are employees in medical professions or hospitals (doctor, nurses, MediTech's, etc.) who kill patients to end their suffering. For example, Charlse Cullen, a nurse in New Jersey and PA area hospitals, was arrested in 2003 and convicted of the murder of 29 individuals, the earliest proven one occurring in 1988. It suspected that he could be responsible for over 400 additional deaths in his 15 year span, but records are not available to prove conclusively. Compared to non-medical serial killers, Sam Little, who was arrested 2 years later and was active for 20 years longer, was convicted of killing 61 people and is suspected of killing 93. Ted Bundy was convicted on 20 counts of murder and may have killed more than 100 people. The most profolific non-medical serial killer in the world, Colombian Luis Garavito is suspected of killing over 300 people, and was convicted of 193. Angel of Mercy killers, on an average, have a higher suspected victim numbers than non-medical serial killers, as they tend to be active in hospitals and target victims they believe are in pain, seeing as putting them out of their misery (hence the name &quot;Angel of Mercy&quot;). Since their victims are often in serious danger, it's not immediately suspect that they take a sudden turn for the worse. Cullen the investigation that lead to Cullen's arrest was actually detected by a poison control worker that the hospital called, who noticed that chemicals turning up in patients who died in nurses had no business being in those patients based on the scripts.</p>\n", "score": 4 }, { "answer_id": 92405, "body": "<p>In the Netherlands you are always allowed to restrain someone and call for the police or authorities... and when is restraining someone violence? Bit of a grey area I think, a lot of ways to interpret it if it comes to a trial...</p>\n<p>If it was one of my loved ones that was being unplugged, I would stop that person no matter what punishment followed - deal with that later 😊.</p>\n", "score": 0 } ]

[ "self-defense", "any-jurisdiction", "defense-of-others" ]

[ { "answer_id": 92554, "body": "<p>Prior to <a href=\"https://supreme.justia.com/cases/federal/us/334/1/\" rel=\"nofollow noreferrer\">Shelley v. Kramer</a>, racial covenants were considered to be outside the scope of the 14th Amendment, because as stated in <a href=\"https://supreme.justia.com/cases/federal/us/271/323/\" rel=\"nofollow noreferrer\">Corrigan v. Buckley</a>, &quot;the prohibitions of the Fourteenth Amendment 'have reference to state action exclusively, and not to any action of private individuals'&quot;. Therefore, a private agreement to exclude blacks does not run afoul of the 14th Amendment. The Shelley court also noted:</p>\n<blockquote>\n<p>But here there was more. These are cases in which the purposes of the\nagreements were secured only by judicial enforcement by state courts\nof the restrictive terms of the agreements.</p>\n</blockquote>\n<p>This leads to the primary holding of this case:</p>\n<blockquote>\n<p>We hold that, in granting judicial enforcement of the restrictive\nagreements in these cases, the States have denied petitioners the\nequal protection of the laws, and that, therefore, the action of the\nstate courts cannot stand.</p>\n</blockquote>\n<p>That is, the racially-restrictive agreements are not themselves forbidden by the 14th Amendment, but <em>enforcement</em> of such agreements is forbidden. An obvious question is, why had nobody advanced that argument before, but legal arguments often suffer from the forest / trees disability.</p>\n<p>As far as I have been able to determine, that part of the Oregon Constitution excluding blacks became a legal nullity when the 14th Amendment was ratified, though it remained in the Constitution until 1926. The various anti-Chinese laws which were enforced were not enforced against Chinese who were citizens, see <a href=\"https://www.oyez.org/cases/1850-1900/169us649\" rel=\"nofollow noreferrer\">US v. Wong Kim Ark</a>.</p>\n", "score": 3 } ]

[ "united-states", "legal-history", "equal-protection" ]

[ { "answer_id": 92561, "body": "<p>Congress passes, and the President signs, a legal binding budget for the Federal Government that in broad strokes dictates &quot;we will spend $6.2 Trillion dollars&quot;.</p>\n<p>They pass this budget, knowing full well that estimated Tax Receipts (how much money the Government takes in) will only be about $4.4 Trillion.</p>\n<p>The gap (deficit) of $1.8 Trillion must be borrowed, creating debt.</p>\n<p>The problem is that the Budget is legally passed and describes $1.8T to be financed, even though the Debt Ceiling limits that.</p>\n<p>The question is which one takes priority? The Constitutionally mandated Budget, or the Congressionally created Debt Ceiling?</p>\n<p>The 14th Amendment seems to indicate that the fulfilling the Budget has a higher priority than the Debt Ceiling construct.</p>\n", "score": 6 }, { "answer_id": 92562, "body": "<p>The federal government doesn't have the authority to print money. Under the <a href=\"https://www.law.cornell.edu/uscode/text/12/414\" rel=\"nofollow noreferrer\">Federal Reserve Act</a>, Congress granted that power exclusively to the Board of Governors of the Federal Reserve System (&quot;the Fed&quot;).</p>\n<p>So if the government needs dollar bills to make payments on outstanding bonds, and doesn't have enough from tax receipts or other such income, the only place to get them is from the Fed. The Fed can in principle print as many as it likes, but it doesn't give them away for free; it will only give them to the government in payment for something of value, and normally that &quot;something&quot; is bonds. So the government can only &quot;print more money&quot; indirectly, by issuing more bonds and selling them to the Fed: i.e. taking on more debt.</p>\n<p>(The government does retain the authority to mint coins, and there is a frequently raised suggestion that the government could &quot;print more money&quot; by <a href=\"https://en.wikipedia.org/wiki/Trillion-dollar_coin\" rel=\"nofollow noreferrer\">minting a trillion-dollar coin</a>, and selling <em>that</em> to the Fed instead of bonds. I won't go into that here, but suffice it to say there are a lot of potential legal objections.)</p>\n", "score": 2 } ]

[ "united-states", "debt", "fourteenth-amendment" ]

[ { "answer_id": 92545, "body": "<p>Section 9 CJA statements are for criminal proceedings, and there is no cross-pollination.</p>\n<p>For family law, see <a href=\"https://www.legislation.gov.uk/uksi/2010/2955/rule/22.4?timeline=false\" rel=\"nofollow noreferrer\">Rule 22.4</a>, Family Procedure Rules 2010:</p>\n<blockquote>\n<p>22.4.—(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.</p>\n<p>(2) A witness statement must comply with the requirements set out in the Practice Direction 22A. (Part 17 requires a witness statement to be verified by a statement of truth.)</p>\n</blockquote>\n<p><a href=\"https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_22a\" rel=\"nofollow noreferrer\">Practice Direction 22A</a> is quite long and difficult for me to reproduce in full here, but of particular note is Paragraph 4.1:</p>\n<blockquote>\n<p>Subject to paragraph 4.2 and rules 14.2 and 29.1, the affidavit/statement must, if practicable, be in the maker's own words, it should be expressed in the first person, and the maker should –</p>\n<ul>\n<li>(a) commence –</li>\n</ul>\n<blockquote>\n<p>(i) in an affidavit, ‘I (full name) of (residential address) state on oath .. ’;</p>\n<p>(ii) in a statement, by giving his or her full name and residential address;</p>\n</blockquote>\n<ul>\n<li><p>(b) if giving evidence in a professional, business or other occupational capacity, give the address at which he or she works in (a) above, the position held and the name of the firm or employer;</p>\n</li>\n<li><p>(c) give his or her occupation or (if none) description; and</p>\n</li>\n<li><p>(d) if it be the case that the maker is a party to the proceedings or is employed by a party to the proceedings, state that fact.</p>\n</li>\n</ul>\n</blockquote>\n", "score": 3 } ]

[ "united-kingdom", "evidence", "rules-of-court", "criminal-procedure" ]

[ { "answer_id": 92531, "body": "<h3>Short Answer</h3>\n<p>There were <a href=\"https://en.wikipedia.org/wiki/List_of_trials_of_peers_in_the_House_of_Lords\" rel=\"noreferrer\">30 House of Lords convictions</a> of peers resulting in a punishment for the peer (in 29 cases a death sentence, and in the one final case, in 3 months of imprisonment) from 1499 until the practice was abolished in 1948, a time period covering all but the first 158 years of the 607 years during which House of Lords trials were available and the process was formalized.</p>\n<p>Of those convicted peers, 30% were pardoned or commuted by the monarch. There was no appeal from a House of Lords conviction other than a royal pardon or commutation.</p>\n<p>Modern criminal appeals did not exist in ordinary criminal cases either, in any part of the time period during which peers were convicted by the House of Lords of crimes for which we have good records (i.e. from 1499 to 1901).</p>\n<h3>Ordinary criminal procedure compared</h3>\n<p>This should also be viewed in the context of the history of <a href=\"https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1030&amp;context=mlr\" rel=\"noreferrer\">ordinary criminal procedure in England</a> (this link is the source applies to all of the discussion in this section).</p>\n<p>Prior to the year 1700, appeals consisted of a petition to the King or Queen resulting not in a pardon or commutation, but in a direction by the monarch for officials to determine if there were any serious errors in the process by issuing a discretionary writ of error, so it basically, another form of pardon type relief.</p>\n<p>The Writ of Error and some other procedural remedies short of an appeal existed from 1700 to 1907 in England but evolved over time.</p>\n<p>Initially, review other than discretionary review by the monarch was limited to a determination that the judge was really a judge in good standing with jurisdiction over the case, that the indictment described a crime, that a correct number of eligible jurors were seated and rendered a verdict, that the sentence was consistent with the sentence authorized by law. This kind of review of criminal convictions was similar to 18th and early 19th century habeas corpus review of convictions in the United States. Writs of error were also used discretionarily in the U.K. in this era in cases where the prosecution wanted to admit that it made a mistake and vacate a conviction.</p>\n<p>A detailed record of the proceeding that would make a more substantive review possible, however, was not available until 1886, and that was replaced, 21 years later, by the modern direct appeal of a criminal conviction based upon a trial court record include a transcript of the proceedings and all exhibits that had been admitted in the case.</p>\n<p>True formal direct appeals of criminal convictions in the modern sense, however, did not exist in England prior to 1907, after the last verdict of conviction was made by the House of Lords. So, there weren't true direct appeals in ordinary criminal cases either, in the time period when it would have been potentially relevant to appeals of House of Lords convictions.</p>\n<p>Of course, the monarch had the power to pardon or commute the sentences of people convicted of crimes in the U.K. in ordinary criminal cases, &quot;since times immemorial&quot;, just as in House of Lords cases. But, people with ordinary criminal convictions, unlike peers convicted in the House of Lords, did not have the right to demand an audience with the monarch in the way that a peer did, which made the process of seeking pardons and commutations much less effective for commoners.</p>\n<h3>Long Answer</h3>\n<p>The right to be tried by other peers was established around the time of the Magna Carta, formalized in 1341, and formally <a href=\"https://en.wikipedia.org/wiki/Privilege_of_peerage\" rel=\"noreferrer\">abolished in 1948</a>. Prior to 1695 it was before only a jury of nobles hand picked by the monarch to rule as the monarch desired, when parliament was not in session, but after that the entire House of Lords participated in each trial.</p>\n<p>From 1547 to 1841, there was no punishment after a first offense other than treason or murder, which was just a strike to open up the possibility of punishment for a second offense, and greatly reduced the need for an appeal. According <a href=\"https://en.wikipedia.org/wiki/Privilege_of_peerage\" rel=\"noreferrer\">to Wikipedia</a> (references omitted):</p>\n<blockquote>\n<p>The right of peers to trial by their own order was formalized during\nthe 14th century. A statute passed in 1341 provided:</p>\n<p><em>Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and\ncattels, asseized in the King's hands, and some put to death without\njudgment of their peers: It is accorded and assented, that no peer of\nthe land ... shall be brought in judgment to lose his temporalities,\nlands, tenements, goods and cattels, nor to be arrested, imprisoned,\noutlawed, exiled, nor forejudged, nor put to answer, nor be judged,\nbut by award of the said peers in Parliament.</em></p>\n<p>The privilege of trial by peers was still ill-defined, and the statute\ndid not cover peeresses. In 1442, after an ecclesiastical court (which\nincluded King Henry VI of England, Henry Beaufort and John Kemp) found\nEleanor, Duchess of Gloucester, guilty of witchcraft and banished her\nto the Isle of Man, a statute was enacted granting peeresses the right\nof trial by peers.</p>\n<p>By the reign of Henry VII of England [reigned 1485-1509], there were two methods of trial by peers of the realm:\ntrial in the House of Lords (or, in proper terms, by the High Court of\nParliament) and trial in the Court of the Lord High Steward. The House\nof Lords tried the case if Parliament was in session; otherwise, trial\nwas by the Lord High Steward's Court.</p>\n<p>In the Lord High Steward's Court, a group of Lords Triers, sitting\nunder the chairmanship of the Lord High Steward, acted as judge and\njury. By custom, the number of Triers was not fewer than 23, so that a\nmajority was a minimum of 12, but in fact, the number ranged from 20\nto 35. The power to choose which peers served as Triers lay with the\nCrown and was sometimes subject to abuse, as only those peers who\nagreed with the monarch's position would be summoned to the Court of\nthe Lord High Steward, thereby favoring the desired verdict.</p>\n<p>This practice was ended by the Treason Act 1695, passed during the\nreign of King William III. The Act required that all peers be summoned\nas Triers. All subsequent trials were held before the full House of\nLords.</p>\n<p>In the House of Lords, the Lord High Steward was the President or\nChairman of the Court, and the entire House determined both questions\nof fact and questions of law as well as the verdict. By convention,\nBishops and Archbishops did not vote on the verdict, though they were\nexpected to attend during the course of the trial. They sat until the\nconclusion of the deliberations, and withdrew from the chamber just\nprior to the final vote. At the end of the trial, peers voted on the\nquestion before them by standing and declaring their verdict by saying\n&quot;guilty, upon my honour&quot; or &quot;not guilty, upon my honour&quot;, starting\nwith the most junior baron and proceeding in order of precedence\nending with the Lord High Steward. For a guilty verdict, a majority of\ntwelve was necessary. The entire House also determined the punishment\nto be imposed, which had to accord with the law. For capital crimes\nthe punishment was death; the last peer to be executed was Laurence\nShirley, 4th Earl Ferrers, who was hanged for murder in 1760.</p>\n<p>From 1547, if a peer or peeress was convicted of a crime, except\ntreason or murder, he or she could claim &quot;privilege of peerage&quot; to\nescape punishment if it was his or her first offence. In all, the\nprivilege was exercised five times, until it was formally abolished in\n1841 when James Brudenell, 7th Earl of Cardigan, announced he would\nclaim the privilege and avoid punishment if he was convicted of\nduelling. He was acquitted before the introduction of the bill.</p>\n<p>The last trial in the House of Lords was that of Edward Russell, 26th\nBaron de Clifford, in 1935 for manslaughter (he was acquitted); the\nfollowing year the Lords passed a bill to abolish trial by peers but\nthe Commons ignored it. The right to trial by peers was abolished when\nthe Lords added an amendment to the Criminal Justice Act 1948, which\nthe Commons accepted. Now peers are tried by juries composed of\ncommoners, though peers were themselves excused from jury service\nuntil the House of Lords Act 1999 restricted this privilege to members\nof the House of Lords. The right to be excused was abolished on 5\nApril 2004 by the Criminal Justice Act 2003.</p>\n<p>Peers were and still are, hypothetically, subject to impeachment.\nImpeachment was a procedure distinct from the aforementioned procedure\nof trial in the House of Lords, though the House of Lords is the court\nin both cases. Charges were brought by the House of Commons, not a\ngrand jury. Additionally, while in normal cases the House of Lords\ntried peers only for felonies or treason, in impeachments the charges\ncould include felonies, treason and misdemeanours. The case directly\ncame before the House of Lords, rather than being referred to it by a\nwrit of certiorari. The Lord High Steward presided only if a peer was\ncharged with high treason; otherwise, the Lord Chancellor presided.\nOther procedures in trials of impeachment were similar, however, to\ntrials before the House of Lords: at the conclusion of the trial, the\nspiritual peers withdrew, and the temporal Lords gave their votes on\ntheir honour. The last impeachment was that of Henry Dundas, 1st\nViscount Melville, in 1806 for misappropriating public money (he was\nacquitted). Since then, impeachment has become an obsolete procedure\nin the United Kingdom.</p>\n</blockquote>\n<p><strong>The ultimate appeal was to the King or Queen personally,</strong> and the right to personally petition the sovereign called &quot;access to the sovereign&quot; is one of the traditional privileges of peerage that U.K. nobles held:</p>\n<blockquote>\n<p>according to Sir William Blackstone in 1765, &quot;it is usually looked\nupon to be the right of each particular peer of the realm, to demand\nan audience of the King, and to lay before him, with decency and\nrespect, such matters as he shall judge of importance to the public\nweal.&quot; The privilege of access is no longer exercised[.]</p>\n</blockquote>\n<p>In the time period from 1499 to 1901 there were 30 convictions of peers by the House of Lords that were not excused by peer privilege (there were no other convictions after 1901), all of which except a 3 month sentence in 1901, were death sentences. Seven of those convicted were pardoned by the monarch (most recently in 1746). Two peers had a death sentences commuted by the monarch to imprisonment in 1603. Two more escaped before being executed in 1716, and one died of other causes before he could be executed in 1589. Only three death sentences were carried out following House of Lords convictions since the last royal pardon in 1746. (There were five other House of Lords convictions for offenses other than murder or treason prior to 1841 and punishable by a sentence other than death, but in all five of those cases, the &quot;privilege of peerage&quot; was used to vacate any punishment for the crime of conviction because it was a first offense, so no appellate review or royal pardon or commutation was necessary.)</p>\n<p>Thus, 30% of peers convicted and sentenced to death by the House of Lords were pardoned or had their sentences commuted by the monarch.</p>\n<p><strong>There was no forum outside of the House of Lords other than a royal pardon to which an appeal was available.</strong></p>\n<p>Incidentally, 30 convictions of offenses limited to murder and treason in this time period isn't vanishingly low. Before the recent contraction of the House of Lords, it had about 730 peers at any one time, so in the 449 year period for which we have records, there were about 328,000 person years of potential defendants, with a conviction for murder or treason every 11,000 or so person years. This is quite high by modern standard for an exceedingly privileged and carefully socialized group of people who didn't have access to firearms for most of that time period.</p>\n", "score": 19 } ]

[ "united-kingdom", "court", "appeal", "house-of-lords" ]

[ { "answer_id": 92536, "body": "<h2>&quot;Plagiarism&quot; is an academic concept, not a legal one</h2>\n<p>Plagiarising the work of another without attribution is academic misconduct in every reputable academic facility and can lead to disciplinary action. But it's not against the law, and you can't be sued for doing it.</p>\n<h2>Copyright violation <em>is</em> against the law</h2>\n<p>You violate copyright when you copy or make a derivative work from the copyrighted work of another without permission or without an exemption under the law.</p>\n<p>In some jurisdictions, authors and artists have moral copyright, which operates alongside proprietary copyright and gives certain rights, including the right of attribution and the right for their work to be treated respectfully. In those jurisdictions, even if you have the copyright holder's permission, you must still respect the moral rights.</p>\n<p>Let's make some things explicit by considering a particular artwork. Say, this one:</p>\n<p><a href=\"https://i.stack.imgur.com/ZEuEL.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/ZEuEL.png\" alt=\"Leonardo's Mona Lisa\" /></a></p>\n<p>This particular piece is not subject to copyright because a) it was created before there was such a concept, and b) da Vinci died in 1519, so if there had been a copyright law, copyright in this work would have long expired. So, you can make as many copies of this as you like.</p>\n<p>Now, let's consider what the situation would be if Leonardo's alchemical pursuits had been more successful and instead of dying in 1519, he died last Tuesday.</p>\n<p>If you want to make a copy of this image, you must have Leonardo's heir(s) permission or be operating under an exemption under copyright law in your jurisdiction.</p>\n<p>When you train your AI, you will need to make a copy of the image. Do you have permission? Do you have a relevant exemption?</p>\n<p>If you obtained your images by scraping websites then the answers are no and (probably) no.</p>\n<p>Whether the image has metadata identifying the author is irrelevant to answering the questions. Whether there is any way of identifying the artist is also irrelevant - you still need their permission even if you don't know who to ask.</p>\n<p>If your AI, when prompted, generates an image that is <a href=\"https://en.wikipedia.org/wiki/Mona_Lisa_replicas_and_reinterpretations\" rel=\"noreferrer\">strikingly similar</a> to a copyrighted image it was trained on, that is a derivative work and you need permission for that. Under current law, the programer(s) are likely the copyright violators rather than the users of the AI.</p>\n", "score": 20 }, { "answer_id": 92537, "body": "<h3>When constructing the training collection</h3>\n<p>If copyrighted works are copied without licence in order to construct the training data for an AI, that is <em>prima facie</em> infringment and the person constructing or copying that training collection is infringing (<em>subject to a fair dealing or fair use exception</em>). See Mark Lemley and Bryan Casey, &quot;Fair Learning&quot;, Vol. 99, No. 4 Texas Law Review (2021); Canada, House of Commons Standing Committee on Industry, Science and Technology, &quot;Statutory Review of the Copyright Act&quot; (2019).</p>\n<h3>If the AI produces an infringing work</h3>\n<p><em><strong>If</strong></em> the AI produces work that infringes, there are several entities who might be liable, including the person who trained the AI and the person who distributed the trained AI.</p>\n<h3>The programmer, without doing more, is not likely liable for infringement</h3>\n<p>Contrary to the position of the other answer, the consensus is that the mere programmer of the untrained AI model, unless they <em>also</em> trained or distributed the AI, is not infringing. They are not liable in copyright for what people train the AI to do or for what they use it for afterwards.</p>\n<hr />\n<p>^{Note: The other answer suggests that &quot;striking similarity&quot; is the test for what makes a derivative work. But &quot;striking&quot; or &quot;substantial&quot; similarity is part of the test for <em>prima facie</em> infringement.}</p>\n", "score": 6 } ]

[ "copyright", "artificial-intelligence", "attribution" ]

[ { "answer_id": 92541, "body": "<p>This particular list of excluded branches seems to refer to those who are able to excercise whistleblowing protections through the U.S. Office of Special Counsel. It does not mean that employees excluded by these rules would be unable to whistleblow at all. Rather, the government channels through which they are able to seek protection are likely through a different office. In so far as I can tell, USOSC might restrict the FBI from protection services because they protect employees who go to the Media. FBI agents often handle classified material which would not be allowed to be disclosed to the media and many intel agency employees are required to submit any documents they intend to publish based off knowledge aquired from their employment for a pre-publishing review to make sure no classified material is leaked, and would thus limit the way the employee could whistleblow.</p>\n<p>Just because this particular office does not provide protection services to the listed employees, it does not mean there is an agency or department that does provide them (Usually the Office of General Inspector for the particular agency in question. While they are attached to the agency they cover, they are not within the chain of command of the agency itself and are independent to them.).</p>\n<p>For that reason, just because the rules that apply to most do not cover FBI Whistle Blowers, it does not mean an FBI employee cannot become a whistle blower. They just cannot use the services of USOSC in their whistleblowing efforts.</p>\n", "score": 13 } ]

[ "united-states", "fbi", "whistleblower" ]

[ { "answer_id": 92546, "body": "<p>Almost by definition, the answer varies from jurisdiction to jurisdiction.</p>\n<p>Colorado, for example, has a statute establishing some boundaries on the authority of local governments to establish criminal and quasi-criminal ordinances (e.g., limiting that maximum penalties that can be imposed) and the state supreme court in Colorado has adopted a couple of sets of procedural rules for municipal courts in which municipal ordinances are enforced.</p>\n<p>Sometimes procedural and substantive rules related to ordinance violations are set forth in the laws of the government whose laws authorize the formation of the entity, while in other cases, limitations and rules related to these ordinance violations are set by the municipality itself.</p>\n<p>Some jurisdictions have very formal municipal court systems with detailed procedures and judges with similar qualifications to state judges in courts of general jurisdiction (or have no separate municipal court system at all). Other jurisdictions are very loose, and have decisions made by non-lawyer judges in relatively informal proceedings with few formal procedural rules.</p>\n<p>Often, in jurisdictions with less formal processes, an appeal of an initial adverse decision of a municipal court is by a trial <em>de novo</em>, which means that a dissatisfied defendant can have a do over in a new trial in a more formal court setting.</p>\n<p>The details like when on offense occurs, when it has to be charged, and the like, also depends on both the kind of conduct regulated and on the kind of relief sought by the municipality.</p>\n<p>For example, Colorado has a one year state level statute of limitations running from the date that construction is completed on claims to fine, incarcerate, or order of tear down, of a structure completed in violation of building codes or HOA covenants, which is shorter than the statute of limitations established by state law for some other kinds of ordinance violations and specifies clearly when the statute of limitations clock starts running. But a Colorado municipality can still deny future building permits if past work done in violation of building codes for which a statute of limitations for prosecuting an ordinance violation or ordering a tear down has run, until the past work is up to code.</p>\n<p>Unfortunately, since the sources of law are highly fragmented and differ from one jurisdiction to another, and because these issues are often not litigated to the point where they become precedent making reported decisions of appellate courts, legally researching these issues is often challenging. Even finding a copy of the relevant municipal codes and municipal court procedures is often a non-trivial matter, especially in rural areas and in poor municipalities that haven't had the funds to make this kind of information available online.</p>\n", "score": 2 } ]

[ "municipal-law" ]

[ { "answer_id": 92543, "body": "<p><a href=\"/questions/tagged/new-jersey\" class=\"post-tag\" title=\"show questions tagged &#39;new-jersey&#39;\" aria-label=\"show questions tagged &#39;new-jersey&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-jersey-tooltip-container\">new-jersey</a></p>\n<p>I'm going to provide an answer based on my experience and obligations as a Professional Engineer (PE), which is generally similar to the obligations of an Registered Architect (RA).</p>\n<p>You do not state exactly what is meant by 'things go seriously wrong with the project,' but in general it doesn't matter. What truly matters is that Alice is the Registered Architect and Belle is not; this is reflected in the billings whereby Alice is charging $200 an hour and Belle is $100 an hour. The fact that things have gone seriously wrong with the project is now Alice's fault. Even if the fault is in an error that Belle made, it is still Alice's fault because of their obligation of 'Responsible Charge'.</p>\n<p>In NJ, the definition for Responsible Charge is detailed in <a href=\"https://www.njconsumeraffairs.gov/regulations/chapter-27-new-jersey-state-board-of-architects.pdf\" rel=\"nofollow noreferrer\">Chapter 13:27</a> for RAs and <a href=\"https://www.njconsumeraffairs.gov/regulations/Chapter-40-State-Board-of-Professional-Engineers-and-Land-Surveyors.pdf\" rel=\"nofollow noreferrer\">13:40</a> for PEs, but is generally the same to mean that the professional in responsible charge shall provide effective supervision over all aspects of the work.</p>\n<blockquote>\n<p>Would the misrepresentation be considered to be &quot;material&quot;?</p>\n</blockquote>\n<p>Probably not unless either the contract provided a clear definition on what is meant by the term 'architect' or there is relevant law that defines what that term is and how it may be used within business. In NJ, there is a definition for 'Engineer', but it's only applicable within the bounds of Chapter 13:40 and is not intended to limit how the word might be used throughout the State. As a whole, someone operating a train can still call themselves an 'Engineer'.</p>\n<p>Furthermore, we use the term to describe lots of different people within the engineering profession. For example, you might see billings for Engineer I, Engineer II, Engineer III, Engineer IV, etc. all attempting to provide more diverse billing structures to make hourly rates match experience levels.</p>\n<p>Furthermore, there are plenty of times in the United States as a whole, where someone might be fully registered and licensed in one state but not another.</p>\n<blockquote>\n<p>Would Conrad have to prove that he would not have entered into the\ncontract if he had known that Belle was not an architect?</p>\n</blockquote>\n<p>It's likely not relevant. As I described above, there are a litany of reasons why both could be described as an Architect, but what truly matters is that one of them is a Registered Architect and thus has responsible charge over the issuance of plans.</p>\n<blockquote>\n<p>Does Conrad have to show that the standard of work from Belle was not\nthe standard of work that would have come from an architect?</p>\n</blockquote>\n<p>No. Alice is the Registered Architect who signed the plans. The standard of work by Belle is by default the standard of work of Alice whom has responsible charge. If Alice has issued plans that are fundamentally flawed, the error is their fault.</p>\n<blockquote>\n<p>Conrad does not doubt that the hours attributed to Belle are honestly\nattributed, but is it material that the work is shown as having been\ndone by &quot;Belle (Architect)&quot;?</p>\n</blockquote>\n<p>No.</p>\n<hr />\n<p>As a matter of resolution for this, I can say that you're more likely to get something done in a cost-effective manner by raising a complaint with Alice than anyone else.</p>\n<p>To exemplify, a few years back a friend of mine had hired an architect to design a building addition for their home. The architect's scope of work included completing a survey of the existing structure so they could base their design upon it. During construction, it was revealed partway through that the proposed expansion was going to conflict with the existing windows on the second floor.</p>\n<p>This is not acceptable for a litany of reasons, but it should've been discovered in design, not construction. Reviewing this issue with my friends, I encouraged my friends to document the issue in detail, meet with the Registered Architect on-site, and demand a solution.</p>\n<p>Thankfully, this went well and the RA accepted fault for the error. The costs of revising plans and additional construction costs was simply borne by the RA.</p>\n<p>Had the RA refused to accept fault, the next alternative would've been to make a claim against the RA's insurance carrier for Errors and Omissions. E&amp;O insurance is stupidly expensive, but also absolutely necessary for an RA to operate. It's often much cheaper to just pay the cost of plan revisions and construction change orders than to have a lot of claims on your E&amp;O.</p>\n", "score": 3 }, { "answer_id": 91692, "body": "<h2>Maybe</h2>\n<blockquote>\n<p>Would the misrepresentation be considered to be &quot;material&quot;?</p>\n</blockquote>\n<p>Maybe</p>\n<blockquote>\n<p>Would Conrad have to prove that he would not have entered into the contract if he had known that Belle was not an architect?</p>\n</blockquote>\n<p>Yes</p>\n<blockquote>\n<p>Does Conrad have to show that the standard of work from Belle was not the standard of work that would have come from an architect?</p>\n</blockquote>\n<p>No</p>\n<blockquote>\n<p>Conrad does not doubt that the hours attributed to Belle are honestly attributed, but is it material that the work is shown as having been done by &quot;Belle (Architect)&quot;?</p>\n</blockquote>\n<p>Not for this purpose.</p>\n<p>In order to rescind the contract for <a href=\"https://en.wikipedia.org/wiki/Misrepresentation\" rel=\"nofollow noreferrer\">misrepresentation</a>, the misrepresentation has to be made before the contract was entered into and it must be material, that is, that Conrad only entered into the contract in reliance of it. A non-material misrepresentation may be a term of the contract, breach of which may allow damages but not necessarily termination.</p>\n<p>Note that if the misrepresentation happens after the contract was entered into (such as first appearing on the invoice) it would not allow either damages or rescinding. However, it may be an offence that the government can prosecute.</p>\n<p>Also note, silence is generally not a misrepresentation unless there is a positive duty to disclose the fact. There is generally not a duty to correct a misunderstanding on the other party’s part unless asked - so if the other party assumes your Picasso print is an original, you don’t have to correct them unless they actually ask you or your acts led the to that misunderstanding.</p>\n<p>Things going “seriously wrong with the project” due to the architect’s (using the term advisedly) negligence would give rise to a seperate claim from any misrepresentation of their qualifications.</p>\n", "score": 2 } ]

[ "united-kingdom", "contract-law", "consumer-protection", "australia" ]

[ { "answer_id": 92400, "body": "<p>The offeror is &quot;master of the offer&quot; including the manner in which the contract may be accepted. Where the offeror specifies that acceptance may be by specific conduct, the question becomes &quot;<a href=\"https://ca.vlex.com/vid/communication-of-acceptance-683505725\" rel=\"nofollow noreferrer\">whether the offeror, acting reasonably, would understand that the offeree was assenting to the terms proposed</a>.&quot; This is not <em>implicit</em> acceptance; this is acceptance by conduct. This is <a href=\"https://law.stackexchange.com/questions/90788/does-contract-formation-require-subjective-meeting-of-the-minds\">an <em>objective</em> inquiry</a> focusing on how the actions would be understood to a reasonable observer, not an inquiry into the actual states of mind of the offeror or offeree.</p>\n<blockquote>\n<p>It is a question of fact, on a consideration of all the circumstances, whether the conduct of the offeree constitutes an acceptance of the offer. It is open to the offeror to specify the manner in which the offer is to be accepted. Where the offeror does so, this is a significant factor to be taken into account in determining whether or not the conduct of the offeree constitutes acceptance. The conduct of the offeree must be considered in the light of the acceptance provisions specified in the offer.</p>\n<p>(<em>Hill v. Develcon Electronics Ltd. (No. 1)</em>, <a href=\"https://canlii.ca/t/g97vh#par53\" rel=\"nofollow noreferrer\">1991 CanLII 7744 (SK KB)</a>)</p>\n</blockquote>\n<blockquote>\n<p>As is the case where acceptance is intended to be, or is appropriately indicated by some statement by the offeree, whether oral or in writing, the nature of acceptance by conduct depends upon the requirements, if any, stipulated by the offeror. In the absence of any special act or conduct prescribed by the offeror, acceptance may be inferred from the offeror’s [<em>sic</em>: should read &quot;offeree's&quot;]¹ conduct. Yet such conduct must indicate: (a) that the act in question was performed with a view to acceptance of the offer, and not from some other motive or for some other reason; and (b) that it was intended to be acceptance of the offer in question. <strong>In such cases the question is whether a reasonable man would interpret the offeree’s conduct as an acceptance of the offer.</strong></p>\n<p>(Fridman, <em>The Law of Contract in Canada</em>, 4th ed. (1995), p. 56)</p>\n</blockquote>\n<p>A person is not held to terms that they <em>could not</em> have known at the time of the acceptance. See <em>Thornton v. Shoe Lane Parking Ltd.</em>, <a href=\"https://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html\" rel=\"nofollow noreferrer\">[1970] EWCA Civ 2</a>.</p>\n<p>Some onerous or unusual terms are treated with particular skepticism. Unexpected exclusion-of-liability clauses, for example, have been held not to be enforceable unless the offeror takes reasonable steps to ensure the offeree is notified of such clauses prior to their acceptance. See the discussion at <em>Apps v. Grouse Mountain Resorts Ltd.</em>, <a href=\"https://canlii.ca/t/j0q6b#par22\" rel=\"nofollow noreferrer\">2019 BCSC 855 at paragraphs 22-31</a>.</p>\n<p>How the above law would apply to any of the circumstances you describe is for a finder of fact, and you are as well placed as any of us to go through that exercise.</p>\n<p>For a critique of the common-law position, see Margaret Jane Radin, <a href=\"https://press.princeton.edu/books/hardcover/9780691155333/boilerplate\" rel=\"nofollow noreferrer\"><em>Boilerplate</em></a>. She agrees that the above is the state of the law, but discusses the fiction of agreement and criticizes such contracts as &quot;rights deletion schemes&quot; that create &quot;alternative legal universes.&quot;</p>\n<hr />\n<p>^{1. This was likely meant to say &quot;offeree's conduct.&quot; At least two courts have indicated this was an error in the original: <a href=\"https://canlii.ca/t/g97vh#par54\" rel=\"nofollow noreferrer\">e.g. 1</a>; <a href=\"https://canlii.ca/t/1dz5v#par133\" rel=\"nofollow noreferrer\">e.g. 2</a>.}</p>\n", "score": 2 } ]

[ "england-and-wales", "any-jurisdiction", "civil" ]

[ { "answer_id": 86002, "body": "<p>When it is possible to put Bob back in the same state that he was before, then that is what Alice needs to pay for. If Bob managed to buy a £20,000 car for £10,000, then he owned a £20,000 car, and Alice needs to pay so that Bob is in the same position again and owns a £20,000 pound car.</p>\n", "score": 1 }, { "answer_id": 86003, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></p>\n<p>Barring any statutory overlay, damages (liability) from vehicle damage in an automobile collision are assessed to be the market value that was lost: the difference between the pre- and post-collision fair market value (e.g. <em>Lai v. Leung</em>, <a href=\"https://canlii.ca/t/j9w05\" rel=\"nofollow noreferrer\">2020 BCCRT 1111</a> at paragraph 32; I know this is an administrative tribunal, but they're working at the front lines of this kind of dispute, so it is informative to see how they're applying the law).</p>\n<p>This is merely an application of the overarching principle in negligence that the plaintiff is entitled to a sum that would put them in the position they would be in had the negligence not occurred. See <em>Cunningham v. Wheeler</em>; <em>Cooper v. Miller; Shanks v. McNee</em>, <a href=\"https://canlii.ca/t/1frv3\" rel=\"nofollow noreferrer\">[1994] 1 S.C.R. 359</a>, which states this is a long-standing principle in Canada and the United Kingdom:</p>\n<blockquote>\n<p>The fundamental principle is that the plaintiff in an action for negligence is entitled to a sum of damages which will return the plaintiff to the position the plaintiff would have been in had the accident not occurred, in so far as money is capable of doing this. This goal was expressed in the early cases by the maxim <em>restitutio in integrum</em>. The plaintiff is entitled to full compensation and is not to be denied recovery of losses which he has sustained: <em>Livingstone v. Rawyards Coal Co.</em> (1880), 5 App. Cas. 25 (H.L.), at p. 39, per Lord Blackburn. It has been affirmed repeatedly by Canadian courts and once again in more recent times by the House of Lords: &quot;. . . the basic rule is that it is the net consequential loss and expense which the court must measure&quot;: <em>Hodgson v. Trapp</em>, [1988] 3 W.L.R. 1281, at p. 1286. At the same time, the compensation must be fair to both the plaintiff and the defendant. In short, the ideal of the law in negligence cases is fully restorative but non-punitive damages. The ideal of compensation which is at the same time full and fair is met by awarding damages for all the plaintiff's actual losses, and no more. The watchword is restoration; what is required to restore the plaintiff to his or her pre-accident position.</p>\n</blockquote>\n<p>Evidence that could used be to establish the the pre- and post-collision market value includes appraisals, insurance adjustors estimates, repair estimates, used-car valuation datasets, etc.</p>\n", "score": 1 } ]

[ "england-and-wales", "liability", "tort", "civil", "civil-damages" ]

[ { "answer_id": 51989, "body": "<h2>Unadulterated contract law is brutal</h2>\n\n<p>Nor is it the same in every jurisdiction - I will focus on <a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged &#39;australia&#39;\" rel=\"tag\">australia</a>.</p>\n\n<p>The central tenant of contract law is that the parties are free to agree anything that is legal irrespective of whether this leads to what may seem to be a harsh or unjust outcome to an outside observer (or the parties themselves). At common law, harsh and unjust terms are legal - only <a href=\"https://en.wikipedia.org/wiki/Unconscionability#Australian_case_law\" rel=\"nofollow noreferrer\">unconscionability</a> attracts legal protection. However, see below.</p>\n\n<p>The parties have an obligation to follow the terms of the contract in a way that gives effect to the purpose of the contract and to not act in bad faith - there is no obligation to act in good faith. Notwithstanding, a party that scrupulously follows the terms of a contract cannot be acting in bad faith - they are doing what they agreed to do.</p>\n\n<p>That said, most “termination for convenience” clauses are, by their nature, discretionary. Where a party has a discretionary power under a contract they must exercise it reasonably. This doesn’t mean that they can’t exercise the power if it causes damage to the other party but, if it does, then that is a factor in whether the action was reasonable.</p>\n\n<p>If the action was reasonable then only rights and obligations up to the date of termination are enforceable at common law. So, in your circumstance the customer is <strong>not</strong> entitled to a refund.</p>\n\n<h2>However, ...</h2>\n\n<p>Many contracts are not made purely at common law and statute law has knocked some of the harsh edges off.</p>\n\n<p>For example, this contract may be subject to <a href=\"https://consumerlaw.gov.au/australian-consumer-law/legislation\" rel=\"nofollow noreferrer\">Australian Consumer Law</a> (ACL). </p>\n\n<blockquote>\n <p>For the purposes of the ACL, a person is a 'consumer' if they acquire goods or services that are priced at less than $40,000. A person is also a 'consumer' if they acquire good or services that are priced at more than $40,000 but they are 'of a kind ordinarily acquired for personal, domestic or household use or consumption'.</p>\n</blockquote>\n\n<p>If your “expensive subscription” is less than $40,000 then ACL applies and you are entitled to a refund for the services not provided.</p>\n\n<p>Further, if the vendor engaged in “misleading or deceptive conduct” (irrespective of if you are a consumer) then the contract can be set aside and you get your money back.</p>\n\n<p>If the contract is a “consumer contract” (which includes most “take it or leave it” contracts with individuals and small and medium enterprises) then a term is unlawful if it is unfair rather than unconscionable.</p>\n", "score": 1 }, { "answer_id": 87371, "body": "<p>Many U.S. states recognize a <strong>duty of good faith and fair dealing</strong> that may not be waived and is part of every contract.</p>\n<p>In Colorado, this duty applies to the manner in which a party to a contract with discretionary rights under a contract is required to exercise those rights. This must be done in a manner consistent with the mutual intent of the parties in entering into the contract. It is implied as a matter of law in all contract and even sophisticated parties (e.g. big oil companies in business to business transactions) can't waive it.</p>\n<p>Colorado's leading case on the topic is <em>Amoco Oil Co. v. Ervin</em>, <em>908 P.2d 493</em> (Colo. 1995) which spells out the doctrine at length:</p>\n<blockquote>\n<p>Colorado, like the majority of jurisdictions, recognizes that every\ncontract contains an implied duty of good faith and fair dealing. §\n4-1-203, 2 C.R.S. (1992) (&quot;Every contract or duty within this title\nimposes an obligation of good faith in its performance or\nenforcement.&quot;); <em>see, e.g., Wells Fargo Realty Advisors Funding, Inc.\nv. Uioli, Inc</em>., 872 P.2d 1359, 1362 (Colo.App.1994); <em>Friedman v.\nColorado Nat'l Bank</em>, 825 P.2d 1033, 1042 (Colo.App.1991), rev'd on\nother grounds, 846 P.2d 159 (Colo.1993); <em>Ruff v. Yuma County Transp.\nCo</em>., 690 P.2d 1296, 1298 (Colo.App. 1984); <em>see also Larese v.\nCreamland Dairies, Inc</em>., 767 F.2d 716, 717 (10th Cir.1985)\n(explaining that the franchisor-franchisee relationship is one that\nrequires the parties to deal with one another in good faith and in a\ncommercially reasonable manner); see generally Restatement (Second) of\nContracts § 205 (1981); 3 Arthur Linton Corbin, Corbin on Contracts §\n561, at 278 n. 2 (1960); Steven J. Burton, Breach of Contract and the\nCommon Law Duty to Perform in Good Faith, 94 Harv.L.Rev. 369, 369\n(1980) [hereinafter Burton I].</p>\n<p>The good faith performance doctrine is generally used to effectuate\nthe intentions of the parties or to honor their reasonable\nexpectations. <em>See State Farm Mut. Auto. Ins. Co. v. Nissen</em>, 851 P.2d\n165, 168 (Colo. 1993); <em>Davis v. M.L.G. Corp</em>., 712 P.2d 985, 989\n(Colo.1986); Steven J. Burton, More on Good Faith Performance of a\nContract: A Reply to Professor Summers, 69 Iowa L.Rev. 497, 499 (1984)\n[hereinafter Burton II]. Good faith performance of a contract involves\n&quot;faithfulness to an agreed common purpose and consistency with the\njustified expectations of the other party.&quot; <em>Wells Fargo</em>, 872 P.2d at\n1363 (citing Restatement (Second) of Contracts § 205 cmt. a (1981)).\nThe application of the reasonable expectations doctrine often &quot;fails\nto give effect to some hornbook rules governing the construction of\ncontracts,&quot; including &quot;the precept that contracts which are free from\nambiguity are to be enforced as written....&quot; <em>Davis</em>, 712 P.2d at 990\n&amp; n. 7. Nonetheless, adherence to this principle promotes &quot;the central\npolicy underlying contract law, that of construing contracts so as to\neffectuate the parties' intentions....&quot; <em>Id</em>. at 991; <em>see also State\nFarm</em>, 851 P.2d at 166-67; <em>Simon v. Shelter Gen. Ins. Co</em>., 842 P.2d\n236, 240 (Colo.1992).</p>\n<p>The duty of good faith and fair dealing applies when one party has\ndiscretionary authority to determine certain terms of the contract,\nsuch as quantity, price, or time. <em>Hubbard Chevrolet Co. v. General\nMotors Corp</em>., 873 F.2d 873, 876 (5th Cir.), cert. denied, 493 U.S.\n978, 110 S. Ct. 506, 107 L. Ed. 2d 508 (1989); <em>Burton II</em>, <em>supra</em>,\nat 501. The covenant may be relied upon only when the manner of\nperformance under a specific contract term allows for discretion on\nthe part of either party. <em>See Hubbard Chevrolet Co</em>., 873 F.2d at\n877. However, it will not contradict terms or conditions for which a party has bargained. <em>Id</em>.</p>\n<p>The concept of discretion in performance &quot;refers to one party's power\nafter contract formation to set or control the terms of performance.&quot;\nBurton II, supra, at 501. Discretion occurs when the parties, at\nformation, defer a decision regarding performance terms of the\ncontract. Id. Generally, the good faith performance doctrine may be\nused to protect a &quot;weaker&quot; party from a &quot;stronger&quot; party. Weakness and\nstrength in this context, however, do not refer to the relative\nbargaining power of the parties. One commentor explained:</p>\n<p>&quot;Good faith performance cases typically involve arm's-length\ntransactions, often between sophisticated business persons. The\nrelative strength of the party exercising *499 discretion typically\narises from an agreement of the parties to confer control of a\ncontract term on that party. The dependent party then is left to the\ngood faith of the party in control.&quot;</p>\n<p>Burton I, <em>supra</em>, at 383-84.</p>\n</blockquote>\n<p>A right to terminate a contract for convenience is a discretionary right under a contract that is nominally absolute. But, if that right were exercised in a manner calculated to harm the other party to the contract rather than primarily to allow a party to end a contractual relationship that had become burdensome or undesirable, that might breach the implied duty of good faith and fair dealing in the contract.</p>\n", "score": 1 }, { "answer_id": 86470, "body": "<p>In general, one party may cancel a contract for any reason which is provided for in the contract, and does not violate any current law. However, if such a contract is brought before a court which includes equity jurisdiction (as most common law courts now do), the court might well object to the terminating party obtainign an <em><strong>unjust enrichment</strong></em> as by collecting the prove for a service, but never providing th service nor a refund. Such a court might well order a refund of the unearned price, unless some other factor justified the termination.</p>\n<p>Additionally, if the transaction is considered a <em><strong>consumer transaction</strong></em> under local law, consumer protection laws may regulate the transaction, and prohibit a cancellation without refund. The scope and provisions of such laws vary widely between jurisdictions, so one might or might not apply in any particular ase..</p>\n", "score": 0 } ]

[ "contract-law" ]

[ { "answer_id": 92506, "body": "<blockquote>\n<p>Would a buyer and their financier be protected from legal action\nagainst the estate if the home was bought before 120 days after\ndecedents death?</p>\n</blockquote>\n<p>Only if the buyer and the financier were &quot;bona fide purchasers for value without notice&quot; (Per § 867.046(6)). In other words, if they are third-party buyers paying an arm's length price, who didn't know that there was a potentially disputable TOD transfer. Since the TOD transfer and date of death would normally be set forth in the real property records, this would rarely be the case.</p>\n<blockquote>\n<p>Is there any sort of stipulation, statue, or legal precedence that\nrequires a title insurance company to require blood relatives that may\nhave had a claim IF NOT for both a TOD and will? (in this case, there\nare 3 grandchildren, 1 of them is listed as the TOD beneficiary and\nsole inheritor in the Will, the other 2 are left out)</p>\n</blockquote>\n<p>A title insurance company is allowed to set any standards it deems appropriate to insure that the buyer's title which is being guaranteed is unimpaired. During the 120 day period after the date of death it is possible to contest the TOD. Until it is formally admitted to probate, the will may be contested. The fact that both a TOD and a will both make provision for the same property, is itself suspect since if there is a TOD it shouldn't be subject to the will. If the will and TOD are invalid, the heirs at law (i.e. the people who would inherit if there was no will or TOD under the intestacy laws) take. So, requiring a sign off from the heirs at law, in addition to the beneficiary named in the TOD and the will, is a sensible thing for a title insurance company to require.</p>\n<blockquote>\n<p>Does the fact that the grandchildren were adopted by a completely\ndifferent family at a young age matter?</p>\n</blockquote>\n<p>If the grandchildren are still heirs at law of the grandparent under WI law, then it doesn't matter. I'm not familiar with that little corner of WI law, so I don't know under what circumstances adopted children are heirs at law of the biological grandparents.</p>\n<blockquote>\n<p>Would the fact that the grandchildren's parents (both mom and dad)\ndied before adoption matter?</p>\n</blockquote>\n<p>Sometimes this is a matter that is pertinent to the question of whether the grandchildren are still heirs at law under state law. I don't know if this is the case in WI, but I wouldn't be surprised if it was.</p>\n", "score": 0 } ]

[ "real-estate", "wisconsin" ]

[ { "answer_id": 92526, "body": "<p>As a threshold issue, the question frames a situation in which a conflict of interest could sometimes arise. But the facts in the question really aren't rich enough for a full analysis of whether or not there is a conflict of interest.</p>\n<p>This question is controlled (more or less entirely) by <a href=\"https://www.njcourts.gov/attorneys/rules-of-court/duties-former-clients\" rel=\"nofollow noreferrer\">New Jersey Rule of Professional Conduct 1.9</a>. This states:</p>\n<blockquote>\n<p>Duties to Former Clients</p>\n<p>(a) A lawyer who has represented a client in a matter shall not\nthereafter represent another client in the same or a substantially\nrelated matter in which that client's interests are materially adverse\nto the interests of the former client unless the former client gives\ninformed consent confirmed in writing.</p>\n<p>(b) A lawyer shall not knowingly represent a person in the same or a\nsubstantially related matter in which a firm with which the lawyer\nformerly was associated had previously represented a client,</p>\n<p>(1) whose interests are materially adverse to that person; and</p>\n<p>(2) about whom the lawyer, while at the former firm, had personally\nacquired information protected by RPC 1.6 and RPC 1.9(c) that is\nmaterial to the matter unless the former client gives informed\nconsent, confirmed in writing.</p>\n<p>Notwithstanding the other provisions of this paragraph, neither\nconsent shall be sought from the client nor screening pursuant to RPC\n1.10 permitted in any matter in which the attorney had sole or primary responsibility for the matter in the previous firm.</p>\n<p>(c) A lawyer who has formerly represented a client in a matter or\nwhose present or former firm has formerly represented a client in a\nmatter shall not thereafter:</p>\n<p>(1) use information relating to the representation to the disadvantage\nof the former client except as these Rules would permit or require\nwith respect to a client, or when the information has become generally\nknown; or</p>\n<p>(2) reveal information relating to the representation except as these\nRules would permit or require with respect to a client.</p>\n<p>(d) A public entity cannot consent to a representation otherwise\nprohibited by this Rule.</p>\n</blockquote>\n<p>Rule 1.9 also has <a href=\"https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9/\" rel=\"nofollow noreferrer\">official comments</a> that would be highly persuasive:</p>\n<blockquote>\n<p>Client-Lawyer Relationship</p>\n<p><a href=\"https://www.njcourts.gov/attorneys/rules-of-court/duties-former-clients\" rel=\"nofollow noreferrer\">1</a> After termination of a client-lawyer relationship, a lawyer has\ncertain continuing duties with respect to confidentiality and\nconflicts of interest and thus may not represent another client except\nin conformity with this Rule. Under this Rule, for example, a lawyer\ncould not properly seek to rescind on behalf of a new client a\ncontract drafted on behalf of the former client. So also a lawyer who\nhas prosecuted an accused person could not properly represent the\naccused in a subsequent civil action against the government concerning\nthe same transaction. Nor could a lawyer who has represented multiple\nclients in a matter represent one of the clients against the others in\nthe same or a substantially related matter after a dispute arose among\nthe clients in that matter, unless all affected clients give informed\nconsent. See Comment [9]. Current and former government lawyers must\ncomply with this Rule to the extent required by Rule 1.11.</p>\n<p><a href=\"https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9/\" rel=\"nofollow noreferrer\">2</a> The scope of a &quot;matter&quot; for purposes of this Rule depends on the\nfacts of a particular situation or transaction. The lawyer's\ninvolvement in a matter can also be a question of degree. When a\nlawyer has been directly involved in a specific transaction,\nsubsequent representation of other clients with materially adverse\ninterests in that transaction clearly is prohibited. On the other\nhand, a lawyer who recurrently handled a type of problem for a former\nclient is not precluded from later representing another client in a\nfactually distinct problem of that type even though the subsequent\nrepresentation involves a position adverse to the prior client.\nSimilar considerations can apply to the reassignment of military\nlawyers between defense and prosecution functions within the same\nmilitary jurisdictions. The underlying question is whether the lawyer\nwas so involved in the matter that the subsequent representation can\nbe justly regarded as a changing of sides in the matter in question.</p>\n<p>[3] Matters are &quot;substantially related&quot; for purposes of this Rule if\nthey involve the same transaction or legal dispute or if there\notherwise is a substantial risk that confidential factual information\nas would normally have been obtained in the prior representation would\nmaterially advance the client's position in the subsequent matter. For\nexample, a lawyer who has represented a businessperson and learned\nextensive private financial information about that person may not then\nrepresent that person's spouse in seeking a divorce. Similarly, a\nlawyer who has previously represented a client in securing\nenvironmental permits to build a shopping center would be precluded\nfrom representing neighbors seeking to oppose rezoning of the property\non the basis of environmental considerations; however, the lawyer\nwould not be precluded, on the grounds of substantial relationship,\nfrom defending a tenant of the completed shopping center in resisting\neviction for nonpayment of rent. Information that has been disclosed\nto the public or to other parties adverse to the former client\nordinarily will not be disqualifying. Information acquired in a prior\nrepresentation may have been rendered obsolete by the passage of time,\na circumstance that may be relevant in determining whether two\nrepresentations are substantially related. In the case of an\norganizational client, general knowledge of the client’s policies and\npractices ordinarily will not preclude a subsequent representation; on\nthe other hand, knowledge of specific facts gained in a prior\nrepresentation that are relevant to the matter in question ordinarily\nwill preclude such a representation. A former client is not required\nto reveal the confidential information learned by the lawyer in order\nto establish a substantial risk that the lawyer has confidential\ninformation to use in the subsequent matter. A conclusion about the\npossession of such information may be based on the nature of the\nservices the lawyer provided the former client and information that\nwould in ordinary practice be learned by a lawyer providing such\nservices.</p>\n<p>Lawyers Moving Between Firms [4] When lawyers have been associated\nwithin a firm but then end their association, the question of whether\na lawyer should undertake representation is more complicated. There\nare several competing considerations. First, the client previously\nrepresented by the former firm must be reasonably assured that the\nprinciple of loyalty to the client is not compromised. Second, the\nrule should not be so broadly cast as to preclude other persons from\nhaving reasonable choice of legal counsel. Third, the rule should not\nunreasonably hamper lawyers from forming new associations and taking\non new clients after having left a previous association. In this\nconnection, it should be recognized that today many lawyers practice\nin firms, that many lawyers to some degree limit their practice to one\nfield or another, and that many move from one association to another\nseveral times in their careers. If the concept of imputation were\napplied with unqualified rigor, the result would be radical\ncurtailment of the opportunity of lawyers to move from one practice\nsetting to another and of the opportunity of clients to change\ncounsel.</p>\n<p>[5] Paragraph (b) operates to disqualify the lawyer only when the\nlawyer involved has actual knowledge of information protected by Rules\n1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm,\nand that lawyer later joined another firm, neither the lawyer\nindividually nor the second firm is disqualified from representing\nanother client in the same or a related matter even though the\ninterests of the two clients conflict. See Rule 1.10(b) for the\nrestrictions on a firm once a lawyer has terminated association with\nthe firm.</p>\n<p>[6] Application of paragraph (b) depends on a situation's particular\nfacts, aided by inferences, deductions or working presumptions that\nreasonably may be made about the way in which lawyers work together. A\nlawyer may have general access to files of all clients of a law firm\nand may regularly participate in discussions of their affairs; it\nshould be inferred that such a lawyer in fact is privy to all\ninformation about all the firm's clients. In contrast, another lawyer\nmay have access to the files of only a limited number of clients and\nparticipate in discussions of the affairs of no other clients; in the\nabsence of information to the contrary, it should be inferred that\nsuch a lawyer in fact is privy to information about the clients\nactually served but not those of other clients. In such an inquiry,\nthe burden of proof should rest upon the firm whose disqualification\nis sought.</p>\n<p>[7] Independent of the question of disqualification of a firm, a\nlawyer changing professional association has a continuing duty to\npreserve confidentiality of information about a client formerly\nrepresented. See Rules 1.6 and 1.9(c).</p>\n<p>[8] Paragraph (c) provides that information acquired by the lawyer in\nthe course of representing a client may not subsequently be used or\nrevealed by the lawyer to the disadvantage of the client. However, the\nfact that a lawyer has once served a client does not preclude the\nlawyer from using generally known information about that client when\nlater representing another client.</p>\n<p>[9] The provisions of this Rule are for the protection of former\nclients and can be waived if the client gives informed consent, which\nconsent must be confirmed in writing under paragraphs (a) and (b). See\nRule 1.0(e). With regard to the effectiveness of an advance waiver,\nsee Comment [22] to Rule 1.7. With regard to disqualification of a\nfirm with which a lawyer is or was formerly associated, see Rule 1.10.</p>\n</blockquote>\n<p>There is also considerable commentary often in the form of official ethics opinions from a state attorney regulator or bar association, and case law interpreting this (which since it is largely uniform nationally includes case law from other states that is given great weight if there is no in state case law on point). The opinions and cases examine the general principles about in far more specific fact patterns which helps guide the analysis in a particular case.</p>\n", "score": 2 } ]

[ "united-states", "family-law", "new-jersey", "power-of-attorney" ]

[ { "answer_id": 82728, "body": "<p>Typically at trial, the &quot;Trier(s) of Fact&quot; (usually the Jury, unless the defendant requests a bench trier, then it's the judge) will have instructions from the &quot;Trier of Law&quot; (always the Judge) that will allow them to find guilt for &quot;Lesser and Included Charges&quot;. For example, in the U.S., unjustified homicide (legal definition used for manslaughter and murder) comes in three broad types: 1st Degree Murder, 2nd Degree Murder, and Manslaughter (ordered from worst to lesser offense). All the elements to convict on Manslaughter exist in 2nd degree murder, and all elements to convict on 2nd degree murder exist in 1st degree murder. This means that a jury can be given the option that if they don't think the evidence supports a 1st degree charge, they can see if it supports a 2nd degree or Manslaughter.</p>\n<p>However, they can only convict on the charge or the the most serious &quot;Lesser and Included&quot; charges. They cannot find guilt for all three for the same offense.</p>\n<p>This is not in violation of double-jeopardy as this is all presented at the same trial. Double-Jeopardy attaches once the jury is fully selected. If the jury acquits, the prosecutor cannot try for a lesser charge. They have one shot.</p>\n<p>The only time that you can be tried for the same crime a second time is if you are acquitted and it turns out that you were acquitted because the &quot;trier of fact&quot; was corruptly influenced by you or people acting on your direction to find you not guilty (the idea being since the fix was in, you were never in jeopardy to begin with). In all of American Law, this has happened exactly once, so it is very rare.</p>\n<p>Mistrials are another way to get a second trial but mistrials typically come about because of either lawyers misbehaving such that an impartial trial is no longer possible (if it's the prosecutor, they can't retry... if they could it would incentivize them to misbehave in front of a jury that is not favorable to them in the hopes of refiling and getting a more favorable jury). Mistrials rely on a legal fiction that the trial that was declared a Mistrial never happened in the first place.</p>\n<p>If the mistrial is declared on appeal, it is only to the benefit of the convicted, so it is essentially him waiving his right against Double-Jeopardy. Depending on the reason, the prosecution may not refile the case (usually because new exculpatory evidence was found) or cannot (if they did not reveal the exculpatory evidence prior to the trial).</p>\n<p>Edit: Since this is U.S. specific, it should be pointed out that in the United States, Double Jeopardy applies only to one jurisdiction. At any given time in the U.S., you are almost always under 2 jurisdictions (the state/territory's jurisdiction and the Federal government's jurisdiction) and as much as 7 (at the &quot;Four Corners&quot; you are under the Jurisdiction of four states, 2 tribal governments (which are independent of the states those reservations exist in) and the Federal Government). This means that if the state charges you with a crime and fails to properly prosecute you, the Feds can also charge you with a crime and prosecute you properly.</p>\n<p>Typically, the Federal government will prosecute you only if there are federal laws that you violated that the state has no equivalent of OR the state has done an optionally poor job of prosecuting you or properly punishing you (we're talking 30 days jail time for 1st degree murder).</p>\n<p>It is rare for the feds to go after common criminals and they only will go for them if the crime involves crossing state lines as an element of the crime OR the crime involves federal property. YOu are more likely to see federal kidnapping charges against non-custodial parents who take the kid to another state than you are Federal Murders. Typically, the Feds will be satisfied if the crime is tried in state court, no matter the result (it also helps them getting away with the Dual Jurisdiction rule. You can't challenge it if you aren't made a victim of it).</p>\n<p>To give an example of when they might come in, if a non-U.S. citizen enters the United States by way of illegal crossing of the Canada-U.S./Montana Border, and then proceeds to kill a U.S. border agent in the process and is caught by Montana State Police, who can prosecute him and for what?</p>\n<p>Montana can prosecute him for one count of 1st Degree Murder for the murder of a person under the jurisdiction of Montana (the border guard).</p>\n<p>The Federal Government can prosecute him for one count of 1st Degree Murder for the killing of a person under the jurisdiction of the U.S. Federal Government, an additional count of Murder under the Felony Murder rule (If someone dies as a result of your illegal criminal action, that death is a 1st degree Murder) or under the law against killing a federal employee while carrying out their duties (this second option might be rolled in with the killing someone under Federal Jurisdiction).</p>\n<p>Montana cannot prosecute the accused for the Felony murder because U.S. states cannot enforce immigration law. Therefore, in the eyes of Montana, the accused was not committing a crime that lead to someone's death. He just killed a man.</p>\n<p>The feds will likely have Montana take first crack at the case because Montana has more immediate access to labs and evidence than the Feds and because states tend to be quicker about this stuff. Once the case resolves, the Feds will then figure out if they want to charge him for both Murder charges and the Immigration violation, only the Felony Murder Charge and Immigration violation (and accept Montana's outcome of the similar murder charge), or just the Immigration violation (and accept the outcome of Montana's trial for both possible Federal murder charges).</p>\n<p>For academic purposes, the trial for the Immigration Charge will likely be held after the sentence for the Montana charges (if there are any) are carried out because deporting the suspect back to Canada (or his home country) will result in zero jail time because no element of the crime took place there.</p>\n", "score": 8 }, { "answer_id": 82727, "body": "<h2>You cannot be tried for the same <em>crime</em></h2>\n<p><a href=\"https://en.wikipedia.org/wiki/United_States_v._Dixon\" rel=\"nofollow noreferrer\">United States v. Dixon</a> reinstated the <a href=\"https://en.wikipedia.org/wiki/Blockburger_v._United_States\" rel=\"nofollow noreferrer\">Blockburger</a> standard which says that crimes are different if different elements need to be proved.</p>\n<blockquote>\n<p>The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.</p>\n</blockquote>\n<p>Murder requires an additional fact to be proved - intent - but manslaughter does not require an additional fact - all of the elements of manslaughter must be proved in order to prove murder. Therefore they are the same offence and subject to double jeopardy.</p>\n", "score": 1 } ]

[ "united-states", "criminal-procedure", "double-jeopardy", "due-process" ]

[ { "answer_id": 92518, "body": "<h2>There is no recourse</h2>\n<p>The Pardon results in the pardoned person having no liability for the act, no matter if it was a crime or not, and no matter whether the pardon pre-dates a prosecution. There is no legal or political way to appeal a pardon. There isn't even a way to <em>take back</em> a pardon! As a result, the prosecutor or the next governor can do nothing.</p>\n", "score": 4 } ]

[ "united-states" ]

[ { "answer_id": 92519, "body": "<p>Copyright includes the exclusive right to create derivative works. So &quot;majorly changing&quot; the design will not get you around any accusations of copyright infringement. What you would have to do is to create a design from scratch.</p>\n<p>And as Trish said, I don't know who owns the originals, but if it is Disney, they <em>will</em> sue you and it will cost you much more money than you can afford. Whether they win their case or not.</p>\n", "score": 1 } ]

[ "united-states" ]

[ { "answer_id": 92514, "body": "<p>The only significant exception to employment arbitration scope in the U.S. is for sexual assault cases under a law that took effect about a year ago (whose effective date language is actively being litigated over what triggers a before or after effective date determination). H.R. 4445, the <a href=\"https://www.congress.gov/bill/117th-congress/house-bill/4445/text\" rel=\"nofollow noreferrer\">Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act</a> (the Act), into law on March 3, 2022.</p>\n<p>Also, arbitration clauses can't bind non-party government labor law enforcement agencies that aren't parties to the arbitration agreement. Likewise, criminal violations can't be subjected to arbitration (e.g. a criminal prosecutor prosecuted wage theft claim, or involuntary servitude claim).</p>\n<p>Limitations on the scope of the substantive remedy in arbitration are not always allowed, but if the necessary substantive remedy is available in arbitration, any employment matter can be subject to arbitration if the parties agree either pre-dispute or post-dispute in the U.S. An arbitration clause isn't supposed to change substantive law in practice, even if it is possible to do so unreviewably in practice on a case by case basis.</p>\n<p>At some point, children or other people who lack capacity may be incapable of agreeing to an arbitration clause but the threshold is low and can be met by a fiduciary for the person who personally lacks capacity to contract.</p>\n", "score": 2 }, { "answer_id": 92512, "body": "<p>See <a href=\"https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf\" rel=\"nofollow noreferrer\"><em>Epic Systems Corp. v. Lewis</em>, 584 U. S. ____ (2018)</a>.</p>\n<p>Courts must enforce agreements to arbitrate, even in the employment context. Where an agreement requires arbitration, the only way to avoid this is through &quot;generally applicable contract defenses, such as fraud, duress, or unconscionability.&quot;</p>\n", "score": 1 } ]

[ "united-states", "us-constitution", "civil-rights" ]

[ { "answer_id": 92507, "body": "<p>The crucial phrase is &quot;<em>in ihrer Eigenschaft als Mitglieder</em>&quot;. This restricts the prohibition on receiving benefits from the gGmbH to benefits you'd receive <strong>because</strong> you are a partner. It is common to have more than one legal relationship with a (g)GmbH, and being a CEO or otherwise employed by one is a typical situation. The snippet from the law does not restrict what benefits you may receive in your CEO role, just those in your partner role.</p>\n<p>The distinction is also relevant for regular GmbHs: If you are the CEO of a GmbH as well as a partner, then your salary as CEO is taxed differently than your share of the profits. But typically the tax on salary will be higher than the tax on profits, so there is little incentive here to overpay yourself.</p>\n", "score": 18 }, { "answer_id": 92503, "body": "<p>The second quotation clearly contemplates that managing partners will be compensated for their work because it offers a warning about the possible consequences of a managing partner's salary being too high. If <em>any</em> salary were excluded they would have worded it differently and would not have mentioned the relative magnitude.</p>\n<p>I'm less certain about how to interpret the first quotation -- the actual statute. It forbids benefits from the funds of the corporation flowing to members <em>in the capacity of members</em> but that is possibly not inconsistent with paying a salary to a member who is also an executive (&quot;Geschäftsführer&quot;) because the salary is paid in that capacity (that is, it arises from a different aspect of the recipient's relationship to the company). My German isn't good enough to comment on whether &quot;Zuwendung&quot; even includes salaries; the definition in my dictionary is &quot;financial support, contribution, donation,&quot; which could well be limited to unearned income.</p>\n", "score": 6 }, { "answer_id": 92502, "body": "<h2>Do you honestly expect the CEO of German Red Cross to work for free?</h2>\n<p>It’s a USD 41 million business with hundreds of employees. CEO salaries in Germany are lower than in the English speaking world and salaries in the charity/not-for-profit sector are usually lower overall than the for-profit sector because employees in that sector get to feel good about themselves but the salary for a CEO of a major charity like the Red Cross would be several hundred thousand Euros.</p>\n<p>In Germany, as elsewhere, people are entitled to be paid for the work they do, even charity work.</p>\n", "score": 3 } ]

[ "tax-law", "germany" ]

[ { "answer_id": 92496, "body": "<h2>The company continues to own all its assets</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged &#39;australia&#39;\" aria-label=\"show questions tagged &#39;australia&#39;\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>The appointment of a liquidator to does not change what the company owns - it just changes who is in control (the liquidator rather than the directors) and the purpose for which it is being run (realisation of assets for the benefit of creditors rather than as a going concern for the benefit of shareholders).</p>\n<p>The laptop still belongs to the company.</p>\n<p>The liquidator's job is to sell all commercially realisable assets and distribute the proceeds to the creditors. When they have done that (which can take years), they get a release from the court, and the company is deregistered 3 months later. Any assets of a deregistered company belong to the shareholders.</p>\n<p>A 3-year-old laptop is not a commercially realisable asset, so it's not something a liquidator would be interested in. You could tell the liquidator you have it, and they are welcome to collect it at any reasonable time. They will probably say, &quot;keep it.&quot;</p>\n", "score": 11 }, { "answer_id": 92491, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>In most U.S. jurisdictions, a dissolved company continues to be the owner of any property not disposed of belonging to the company, notwithstanding the fact that a liquidation of its assets and its dissolution and winding up of its business have otherwise been completed.</p>\n<p>On the other hand, possession of items of personal property for a sufficiently long period of time after it should have been returned that is not permissive gives you title by adverse possession to it. Usually the adverse possession duration required by law for personal property is much shorter time period than the time period of adverse possession of real property. Often it is the statute of limitations for an action for replevin which is a lawsuit to seek physical return of a particular piece of property, or for conversion of personal property. But, the adverse possession deadline does not run if the possession of the property is permissive or if the possession of the property is secret.</p>\n", "score": 9 } ]

[ "property", "ownership", "bankruptcy", "switzerland" ]

[ { "answer_id": 92499, "body": "<p>In the US, the answer is complicated. First, puberty blockers are approved by the FDA, but only as a treatment for precocious puberty. There is an off-label use for transgender people, which has been outlawed in some states (thus parental consent / notification is irrelevant). That leaves us with general parental consent laws. <a href=\"https://ndaa.org/wp-content/uploads/Minor-Consent-to-Medical-Treatment-2.pdf\" rel=\"nofollow noreferrer\">This document</a> summarizes the laws of various states regarding parental consent, where again it depends on the specific state whether parental notification or consent is required (and at what age). As you can see, the laws are very complex, involving different ages for different treatments. <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=71.34.530\" rel=\"nofollow noreferrer\">In Washington</a>, the age of consent for outpatient medical treatment is 13. <a href=\"https://www.leg.state.nv.us/nrs/nrs-129.html\" rel=\"nofollow noreferrer\">In Nevada</a>, parental consent is required until age 18 except for emancipated minors and for limited medical purposes (emergencies, substance abuse and STD treatment...).</p>\n", "score": 2 } ]

[ "united-states", "medical", "parental-rights", "transgender" ]

[ { "answer_id": 92490, "body": "<p>I am aware of a view of the California law that if a pedestrian looks like they might want to cross the street, any car must stop, but this is not supported by the law, which is about &quot;yielding&quot;. The law incorporates both &quot;yield&quot; and &quot;stop&quot;, the former being &quot;and allow the other person to proceed&quot;.\nIgnoring the photo for a moment, the requirement to yield (not stop) allows a car to continue driving when the driver is e.g. 10 ft from the crosswalk and the pedestrian is three lanes over when they enter the crosswalk, remaining in compliance with the law. The pedestrian and the driven can continue with their journey because there is no conflict.</p>\n<p>The requirement to yield states whose right to proceed is subordinated to the other person's, in case of conflict. Turning to the video which shows what is in front but not behind, it is evident that the vehicle did not actually conflict with the pedestrian, who did not slow down in order to let the vehicle pass. The violation of social conventions is clear, in that the pedestrian enters the crosswalk while the car is 5 or so car lengths back, and can safely slow down so that there would be zero chance of hitting the pedestrian (it starts to slow but only trivially one the pedestrian is visibly 'crossing the street'). As far as I can determine, California case law has not established any numbers that constitute &quot;not yielding&quot;. While I would stop in this circumstance, I don't see that there is a conflict between the pedestrian and the vehicle.</p>\n", "score": 3 } ]

[ "united-states", "california", "traffic" ]

[ { "answer_id": 11469, "body": "<p>The \"Crabs\" game can be legal if it is seen as a form of <a href=\"http://literarydevices.net/parody/\" rel=\"noreferrer\">parody</a>. That is one of the forms of <a href=\"http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/\" rel=\"noreferrer\">\"fair use\"</a> that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or \"mocking\" pieces, which are considered a form of free speech.</p>\n\n<p>Two other issues come into play under \"fair use.\" The first is whether or not this is \"commercial\" (yes) or non-commercial (e.g educational) use. That is mildly negative for \"Crabs\" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its \"home\" market, or whether it is likely to open a new market of a very different, perhaps \"opposite\" audience that might later buy the original as a \"crossover.\"</p>\n\n<p>The \"Crabs\" game seems to address the \"green\" or at least \"pro animal\" (PETA) market. If the defendant can show that the \"Cards\" market addresses e..g., your \"inner Nazi,\" making it \"opposite,\" that would be ideal. It would be less convincing if \"Cards\" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience.</p>\n", "score": 8 }, { "answer_id": 8738, "body": "<p>I don't think we have any way of knowing how or why the crabs haven't been cooked. <a href=\"http://www.opensourcejahrbuch.de/download/jb2006/chapter_06/osjb2006-06-02-en-moeller.pdf\" rel=\"nofollow\">This article</a> is critical of the NC license. The relevant language in <a href=\"https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode\" rel=\"nofollow\">the license</a> says:</p>\n\n<blockquote>\n <p>NonCommercial means not primarily intended for or directed towards\n commercial advantage or monetary compensation. For purposes of this\n Public License, the exchange of the Licensed Material for other\n material subject to Copyright and Similar Rights by digital\n file-sharing or similar means is NonCommercial provided there is no\n payment of monetary compensation in connection with the exchange.</p>\n</blockquote>\n\n<p>A literal reading of the license terms would mean that you cannot take a journal article (for example) to a copy shop to make a copy, unless the shop makes all copies of NC materials for free. The terms do not say anything about profit: it requires there to be <strong>no payment of monetary compensation in connection with the exchange</strong>. </p>\n\n<p>It is not clear to me that there is any potential copyright issue here. You can't copyright the idea of a smart-ass card game, and it is not evident that there is any actual copying of the original material. They do not seem to be actually selling copies of the original cards, so no clear issue of infringement.</p>\n", "score": 4 }, { "answer_id": 86217, "body": "<p>It seems they did get into legal trouble with Cards Against Humanity, relating to the trademark, from this hearing from October 9, 2018:\n<a href=\"https://ttabvue.uspto.gov/ttabvue/ttabvue-91225576-OPP-66.pdf\" rel=\"nofollow noreferrer\">https://ttabvue.uspto.gov/ttabvue/ttabvue-91225576-OPP-66.pdf</a></p>\n", "score": 2 } ]

[ "copyright", "creative-commons" ]

[ { "answer_id": 92420, "body": "<p>It depends on what you mean by &quot;doesn't stick.&quot; If Mark is acquitted of murder in state court, he can't be tried again in state court for the same act of homicide. If the charges are dropped or dismissed without prejudice before jeopardy &quot;attaches&quot; then Mark can be charged again and tried for manslaughter or even murder.</p>\n<p>From <a href=\"https://en.wikipedia.org/wiki/Double_jeopardy\" rel=\"noreferrer\">Wikipedia</a>:</p>\n<blockquote>\n<p>The Double Jeopardy clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. Jeopardy &quot;attaches&quot; when the jury is impanelled, the first witness is sworn, or a plea is accepted.</p>\n</blockquote>\n<p>Any lesser crimes that could be charged for the same act (or acts) are instead considered concurrently with the main charge (or charges) at the original trial. See <a href=\"https://en.wikipedia.org/wiki/Lesser_included_offense\" rel=\"noreferrer\">lesser included offense at Wikipedia</a>.</p>\n<blockquote>\n<p>And if you can charge him with B, does that mean you have to do a whole nother trial?</p>\n</blockquote>\n<p>Yes. If you can charge Mark again, this means that jeopardy did not attach. In this case, if a new charge is to be brought, the entire process starts again from the beginning.</p>\n", "score": 18 }, { "answer_id": 92421, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p><a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-662.html\" rel=\"noreferrer\"><em>Criminal Code</em>, s. 662</a> provides that the accused is at jeopardy of all lesser included offences that are subsumed within the offence charged or as described in the count.</p>\n<blockquote>\n<p>An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself.</p>\n<p>(<em>R. v. G.R.</em>, <a href=\"https://canlii.ca/t/1l6wm#par25\" rel=\"noreferrer\">2005 SCC 45, paragraph 25</a>)</p>\n</blockquote>\n<p>Where the accused was at jeopardy of a conviction on a lesser included offence, the principle against double jeopardy (specifically, <em>autrefois acquit</em>) precludes a subsequent prosecution on that lesser included offence.</p>\n", "score": 7 }, { "answer_id": 92447, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>The CPS offers <a href=\"https://www.cps.gov.uk/legal-guidance/retrial-serious-offences#:%7E:text=The%20rule%20against%20double%20jeopardy,retrial%20section%2075(3).\" rel=\"noreferrer\">guidance on this</a>. You can't be retried for a lesser or more serious offence unless &quot;<em>new and compelling</em>&quot; evidence comes to light.</p>\n<p>Under normal circumstances they get one bite of the cherry.</p>\n<blockquote>\n<p><strong>Retrial of Serious Offences</strong></p>\n<p><em><strong>If a person was acquitted of a qualifying offence</strong> within section 75 (1)</em> [of the <a href=\"https://www.legislation.gov.uk/ukpga/2003/44#:%7E:text=time%20to%20time.-,Section%2075,-SCHEDULE%205\" rel=\"noreferrer\">Criminal Justice Act (2003)</a>]\n<em>then <strong>that person is treated as also having been acquitted of any\nalternative offence which is itself a qualifying offence</strong>, i.e. an\noffence of which he or she could have been convicted in those\nproceedings because of the offence being charged in the indictment...</em></p>\n</blockquote>\n", "score": 5 }, { "answer_id": 92449, "body": "<p><a href=\"/questions/tagged/italy\" class=\"post-tag\" title=\"show questions tagged &#39;italy&#39;\" aria-label=\"show questions tagged &#39;italy&#39;\" rel=\"tag\" aria-labelledby=\"tag-italy-tooltip-container\">italy</a></p>\n<p>The defendant cannot be put on trial twice for the same crime*. But the judge can <em>derubricare</em> the crime, which is a technical term to say that the judge can reduce the charge.</p>\n<p>[*] After the first degree the prosecutor could challenge the verdict and trigger a second degree trial, but that would be something different.</p>\n", "score": 4 } ]

[ "united-states", "criminal-law", "trial", "double-jeopardy", "prosecution" ]

[ { "answer_id": 92474, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/1980/66/section/161\" rel=\"nofollow noreferrer\">s161 Penalties for causing certain kinds of danger or annoyance, Highways Act 1980</a></p>\n<blockquote>\n<p>... (3) If a person plays at football or any other game on a highway to the\nannoyance of a user of the highway he is guilty of an offence and\nliable to a fine not exceeding [F3 level 1 on the standard scale]. ...</p>\n</blockquote>\n<p>(See also the <a href=\"https://www.legislation.gov.uk/ukpga/1980/66/part/IX/crossheading/obstruction-of-highways-and-streets\" rel=\"nofollow noreferrer\">s137 offence of wilful obstruction</a>.)</p>\n<p>Some places may also have their own related bylaws, e.g.</p>\n<blockquote>\n<p>No person shall on any land adjoining a street play any game in a\nmanner likely to cause obstruction to any traffic or to cause danger\nto any person in such a street</p>\n</blockquote>\n<p>Made under <a href=\"https://www.legislation.gov.uk/ukpga/1972/70/section/235\" rel=\"nofollow noreferrer\">s235 of the Local Government Act 1972</a>, for the prevention and suppression of nuisances.</p>\n<p>Traveling further back in time, the <a href=\"https://www.legislation.gov.uk/ukpga/Will4/5-6/50/section/LXXII/enacted\" rel=\"nofollow noreferrer\">Highway Act 1835</a> provided for penalties on persons who &quot;play at Football or any other Game on any Part of the said Highways, to the Annoyance of any Passenger or Passengers&quot; and, in London, the <a href=\"https://www.legislation.gov.uk/ukpga/Vict/2-3/47/section/LIV/enacted\" rel=\"nofollow noreferrer\">Metropolitan Police Act 1839</a> similarly made it an offence to &quot;any Kite or play at any Game to the Annoyance of the Inhabitants or Passengers, or who shall make or use any Slide upon Ice or Snow in any Street or other Thoroughfare, to the common Danger of the Passengers.&quot;</p>\n<blockquote>\n<p>I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems.</p>\n</blockquote>\n<p>It seems possible that the authorities turned a blind eye or your behaviour didn't come to their attention, or your street was designated as a 'play street' (introduced by the Street Playgrounds Act 1938, currently provided for by <a href=\"https://www.legislation.gov.uk/ukpga/1984/27/part/III/crossheading/street-playgrounds\" rel=\"nofollow noreferrer\">sections 29 to 31 of the Road Traffic Regulation Act 1984</a> as amended by the New Roads and Street Works Act 1991). Also, many alleged offenders might be younger than the criminal age of responsibility.</p>\n<p>According to <a href=\"https://hansard.millbanksystems.com/commons/1860/apr/20/observations\" rel=\"nofollow noreferrer\">TJ Miller MP (Colchester) in Hansard, speaking in 1860</a>, in 1859 44 of London's children were sent to prison for playing games in the streets, and by April 1860 25 had been sent to prison - apparently Manchester had imprisoned none.</p>\n<p>In my youth we played in the street although we didn't put up basketball hoops, football goals or other such objects. These stories in the media seem to be rare and involve circumstances where the local authority received too many complaints, particularly when there is damage to homes, cars or flowerbeds - which may amount to criminal damage.</p>\n<p><a href=\"http://news.bbc.co.uk/2/hi/uk_news/england/manchester/4965136.stm\" rel=\"nofollow noreferrer\">Blackpool in 2006</a></p>\n<p><a href=\"https://www.dailymail.co.uk/news/article-458961/Parents-face-100-fine-children-play-football-street.html\" rel=\"nofollow noreferrer\">Glenfield area of Leicester, 2007</a></p>\n<p><a href=\"https://www.dailymail.co.uk/news/article-1045667/Council-bosses-threaten-children-prosecution--playing-football-street.html\" rel=\"nofollow noreferrer\">Newark, Nottinghamshire, 2008</a></p>\n<p><a href=\"https://www.dailymail.co.uk/news/article-1313917/A-sledgehammer-crack-nut-Three-police-officers-patrol-car-rush--children-playing-football-street.html\" rel=\"nofollow noreferrer\">Manchester, 2010</a> - although this seems to be based on one complaint</p>\n<p>^{Hat-tip <a href=\"https://pedestrianliberation.org/2012/07/25/play-streets/\" rel=\"nofollow noreferrer\">Pedestrian Liberation</a> for the information about the older legislation and arrests of children.}</p>\n", "score": 4 } ]

[ "united-kingdom", "england-and-wales", "is-x-legal" ]

[ { "answer_id": 92495, "body": "<p>There is a lot behind the word &quot;can&quot; in your question. If you are simply asking whether states have the sovereign power to interpret international law however they want, then sure. But they might be wrong (thereby leaving themselves in violation of the treaty they are failing to implement), and if they are intentionally doing so to avoid fulfilment of international obligations, then this is itself a violation of international law. States must take actions in good faith towards implementing treaties in their domestic law. See <a href=\"https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf\" rel=\"nofollow noreferrer\">Articles 26 and 27 of the <em>Vienna Convention</em></a>.</p>\n<p>See also: <a href=\"https://law.stackexchange.com/questions/87955/what-gives-rise-to-binding-obligations-at-international-law/87956#87956\">What gives rise to binding obligations at international law?</a></p>\n", "score": 2 }, { "answer_id": 92494, "body": "<p>A nation can interpret its treaty obligations however it wants. If it is wrong in its interpretation, the nation might be sued which could end up being somehow penalized for a wrongful action based on an incorrect interpretation. Whether they can get away with it depends on who is going to enforce that law.</p>\n", "score": 1 } ]

[ "international", "treaty" ]

[ { "answer_id": 92492, "body": "<p>Given that Bob has no obligation to pay anything to Charles, who has no legal duty to do anything, I don't see how Charles could have liability to Bob. If Charles wants to, he can decline to pay a reward to Bob or can pay an amount smaller than Charles hoped for as a reflection of Charles' delay.</p>\n", "score": 4 } ]

[ "civil-law", "tort", "damage-mitigation" ]

[ { "answer_id": 92470, "body": "<h2>No</h2>\n<p>The <a href=\"https://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause\" rel=\"nofollow noreferrer\">full faith and credit clause</a> of the Constitution mean that a judgement in one state is enforcable everywhere in the USA.</p>\n<p>To enforce the judgement against a foreign asset, you would have to take the California judgement to the foreign court and ask them to enforce it - which is normally allowed.</p>\n", "score": 2 }, { "answer_id": 92487, "body": "<p>A judgment creditor collects money from bank accounts using what is called a writ of garnishment.</p>\n<p>This is because (1) a writ of garnishment is a court order directing someone who owes a judgment debtor money or property to turn that money or property over to the judgment creditor instead, and (2) a bank deposit in a bank account is technically a debt that the bank owes to the bank account owner.</p>\n<p>If the bank has branches in both California and Nevada, a writ of garnishment issued based upon the California judgment can be presented to the bank in which you have an account and be directed to pay the money over to the California judgment creditor. Whether this is possible depends upon whether the bank in California where the writ of garnishment is served is the same entity as the bank in Nevada where the customer/judgment debtor has an account. Writs of garnishment are served upon &quot;persons&quot; (natural or legal), not upon accounts or bank branches. If the person upon whom the writ of garnishment needs to be served can be served with process and subjected to the jurisdiction of the California courts, it doesn't need to go to Nevada.</p>\n<p>If the bank at which the funds are deposited in Nevada does not have a branch in California, then the California judgment creditor has the &quot;register&quot; the California judgment in Nevada at which point it becomes also a Nevada judgment and can be enforced as a Nevada judgment with a Nevada writ of garnishment at that point. The registration is ministerial and merely requires filing of a one page form, a certified copy of the California judgment, and a filing fee. This would be done pursuant to the Nevada Enforcement of Foreign Judgments Act (Nevada Revised Statutes §§ <a href=\"https://www.leg.state.nv.us/nrs/nrs-017.html\" rel=\"nofollow noreferrer\">17.330 to 17.400</a>).</p>\n<p>Finally, it is worth noting that a slightly different state court process is usually used in state tax cases than in non-tax cases. Often, rather than litigating a case to judgment in court, what happens is that the state taxing authority files what is called a &quot;distraint warrant&quot; in a state court of general jurisdiction, which is effectively a registration of a judgment entered in the state's administrative tax debt process in a court for purposes of collection as a money judgment through the state court process. Like a judgment registration in another state, this is generally a ministerial process (usually without even a filing fee for the state taxing authority), that isn't actively litigated and can be done without notice having to be served upon the tax debtor. Unfortunately, however, due to the fact that this is such a summary procedure, scammer often issue fake distraint warrants and try to collect them from unsuspecting scam victim.</p>\n", "score": 1 } ]

[ "nevada", "enforcing-judgment" ]

[ { "answer_id": 92484, "body": "<blockquote>\n<p>Can he use another commercial product that is copyrighted, e.g. a map\nof a location (the map is a political map and has nothing to do with\ntrees), for his tree research purposes, if such a map won't be part of\nthe book he works on?</p>\n</blockquote>\n<p>Yes.</p>\n<p>Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves.</p>\n<p>Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a &quot;derivative work&quot; covered by copyright.</p>\n", "score": 3 } ]

[ "copyright" ]

[ { "answer_id": 92481, "body": "<p>Any debts that a person has are to be paid by their estate. Whoever administers the estate must, in all states, publish an announcement to the effect that Smith is deceased and all claims must be made by such and such date, probably within 90 days. If (this is a small if) the hospital takes 6 months to make their claim, it is too late for them (provided that notice was properly given).</p>\n<p>There are also limits on how much can be collected, the simplest case being that you can't collect more than what is in the estate. There can also be complexities regarding order of priority – as you would expect, you must pay debts to the government first. That could include the Medicaid clawback (officially &quot;estate recovery&quot;), however, in the circumstance that you describe it doesn't sound like that would be applicable.\nThere may also be exemptions in a state, for example in Florida, your registered homestead (property of a certain size that you have been living in and have filed the paperwork for) cannot be seized to pay debts, even after death.</p>\n", "score": 5 } ]

[ "united-states", "medical", "insurance", "probate", "automotive" ]

[ { "answer_id": 92480, "body": "<p>I can see two points you might be confused about in your question.</p>\n<h3>1. Works can be in the public domain without having a CC license</h3>\n<p>The Wikipedia statement and the government statement are not inconsistent with each other; just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright. In fact, <a href=\"https://wiki.creativecommons.org/wiki/public_domain\" rel=\"nofollow noreferrer\">CC licenses are moot for material in the public domain:</a></p>\n<blockquote>\n<p>When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright.</p>\n</blockquote>\n<p>So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution. This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator.</p>\n<h3>2. Trademark protections are separate from copyright protections</h3>\n<p>Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright; this is entirely possible. Roughly speaking, trademark protections keep other people from trading on your good name &amp; reputation; copyright protections keep other people from directly profiting from your creative endeavors.</p>\n<p>If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that. Depending on how you use the logos, you might run afoul of these protections. See <a href=\"https://law.stackexchange.com/questions/74218/\">this Q&amp;A for futher details under US law.</a> (Australian law may differ a bit but I would expect that the general principles are the same.)</p>\n", "score": 4 } ]

[ "copyright", "australia" ]

[ { "answer_id": 92461, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes.</p>\n<p><em>Criminal Code</em>, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group.</p>\n<p>It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning &quot;any section of the public distinguished by colour, race, religion or ethnic origin&quot;). What matters is a strict <em>mens rea</em> requirement that the communication was done with the <em>intent</em> of promoting or inciting hatred <em>against</em> such a group.</p>\n<p>If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group.</p>\n<p>See generally, <em>R. v. Keegstra</em>, [1990] 3 SCR 697.</p>\n<h3>Hypothetical laws</h3>\n<p>If instead you are asking about what a hypothetical law <em>could</em> require (since you ask, &quot;If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism...&quot;), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence.</p>\n<p>E.g. &quot;Any person who assaults another, knowing that the other person is X, commits an offence...&quot; This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault.</p>\n<p>E.g. &quot;Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence...&quot; Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter.</p>\n<p>However, Canadian law has constitutional minimum <em>mens rea</em> requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the <em>mens rea</em> from the element relating to the target's status would be unconstitutional.</p>\n", "score": 6 }, { "answer_id": 92460, "body": "<h2>Intimidating or assaulting <em>anyone</em> is against the law</h2>\n<p>It doesn’t matter if they have a congenital genetic condition or not.</p>\n<h2>Anti-discrimination laws aren't written that way</h2>\n<p>They only apply in certain circumstances and they make discrimination on the basis of being or not being in a protected class unlawful. It doesn’t matter if the discriminated against individual is or is not; what matters is if the person doing the discrimination is doing it <em>on that basis</em>.</p>\n<p>Outside of those circumstance, people are allowed to be as bigoted as they like - if you don’t want to hang around with people who have dwarfism, you do you.</p>\n<h2>Perhaps you are thinking of anti-vilification law?</h2>\n<p>In some countries there are laws against vilifying certain groups. However, you are free to insult whoever you like - you just aren’t allowed to use insults about the group. Which means, practically, if you don’t know someone is in a particular group, why would you be using insults that target that particular group anyway? Just stick with the classics: <a href=\"https://www.youtube.com/watch?v=cAy4zULKFDU\" rel=\"nofollow noreferrer\">Your mother was a hamster, and your father stank of elderberries!</a></p>\n", "score": 3 }, { "answer_id": 92476, "body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a> <strong>Yes</strong></p>\n<p>All criminal and civil statutes relating to protected classes use a similar wording of <em>vrai ou supposé</em> (actual or assumed). <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006165460/\" rel=\"nofollow noreferrer\">Example</a></p>\n<blockquote>\n<p>La provocation non publique à la discrimination, à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance, <strong>vraie ou supposée</strong>, à une ethnie, une nation, une prétendue race ou une religion déterminée est punie de (...)</p>\n</blockquote>\n<blockquote>\n<p>Non-public inciting discrimination, hatred or violence against a person or group of persons because of their origin, belonging or non-belonging, <strong>actual or assumed</strong>, in a given ethnic group, nation, so-called race, or religion, is punished by (...)</p>\n</blockquote>\n<p>For instance, many people are prosecuted for actions where racist motive is an aggravating factor. Let’s say the defendant in an assault case posted a photo on Facebook with the label &quot;all Arabs are thieves, I made this one pay for the others&quot;. That is the clearest evidence the prosecutor could hope for, even if that assertion is clearly mistaken. Obviously it is not true that all Arabs are thieves; furthermore, it might be that the victim is not Arab (they attacked a darker-skin individual, without caring to check if they spoke Arabic, abstained from drinking alcohol, etc. - &quot;Arab&quot; is a cultural characteristic, not a skin tone).</p>\n<p><em>Discussing the &quot;so-called race&quot; wording would take an offtopic deep dive into how mainstream French culture perceives race/ethnicity compared to the UK or US. <a href=\"https://casdinteret.com/2020/06/racism-in-france-what-most-americans-dont-know/\" rel=\"nofollow noreferrer\">That link</a> gives a rather good accounting for a general audience (even if some nuance is lost to simplification).</em></p>\n", "score": 1 }, { "answer_id": 92478, "body": "<p>U.S.</p>\n<p>In the U.S., merely making fun of someone is not a crime, though it can be considered insensitive. Therefore, whether mistaken or not, merely mocking someone is not a crime.</p>\n<p>Instead, if you commit a crime against a person, and it can be proven that your motivation in committing that crime was in part because of the victim's status as a member of a protected class led to the victim to be targeted by the criminal, than the criminal may be charged with a count of &quot;Hate Crime&quot; in addition to the ordinary crime or crimes that were charged. The language of the law is also written to include the phrase &quot;perceived or otherwise&quot; to denote that the mistaken targeting of the victim for being a member of a protected class that the victim is in fact not is not a defense against a Hate Crime charge. For example, following the events of 9/11 there was a spike in attacks against Sikh men largely due to the fact that most Adult Sihks wear Turbans and have large beards, both products of a tennent of the Sihk faith, which forbids men from ever cutting their hair. In the U.S., a Turban and Beard are often associated with Arabic and Islamic culture more than Sikhism, which is a much smaller religion from India and Pakistan. This lead to Sikh men getting mistaken from Muslim men and assaulted for the actions of the Islamic based terrorists who masterminded the terrorist attacks. When the perpetrators were arrested, they were charged with a hate crime, since it was clear the attacks were motivated by hatred against Muslims and Arab-Americans, despite the fact that the victims were neither Muslims nor were they Arabic.</p>\n<p>The protected classes in the U.S. under federal hate crime laws are defined as race, color, religion, national origin, ethnicity, gender, sexual orientation, gender identity, or disability as of 2009. Dwarfism is a medical term that refers to a number of conditions that result in an adult human of any sex achieving a full grown height equal to or lesser than 4'10&quot; tall (147 cm) and typically is considered a disability, so would fall under a Hate Crime protection. However, height, in and of itself, is not a protected class, so a 6'6&quot; (2 m) person attacking someone with medical dwarfism because his victim is smaller than him would not be a hate crime, since a person of average height would also be targeted. It would have to be proven that the attacker was specifically targeting people for having dwarfism.</p>\n<p>It should also be noted that Hate Crime legislation is written in a way to be neutral to a particular protected class based on minority or majority status. Because of this, a hate crime can occur against victim with white skin so long as the victim's skin color was the reason they were targeted. Additionally, a hate crime cannot occur if the crime targeted someone in part or wholly based on non-protected status. For example, if a serial killer is targeting African-American Men who are overweight, then it is not a hate crime, since weight is not a protected class despite the other two categories being protected classes. The U.S. also defines &quot;religion&quot; as a &quot;sincerely held belief&quot; and makes no legal requirements for consideration of whether one is practicing a valid religion beyond that (almost all legal definitions to classify religion are for tax purposes only. No categorization requires observation of any particular doctrine.).</p>\n<p>It should also be noted that protected classes are expanded in matters such as civil laws. Additionally, states and other law-making bodies may impose their own Hate Crimes laws, which can expand on the defined protected classes. For example, in Washington D.C., protected status includes &quot;source of income&quot; which largely makes it a Hate Crime to target for crime someone because they work for a political organization (it doesn't have to but being the capitol and having protests frequently outside of the workplace of government agencies, the reason for this inclusion was in the minds of lawmakers when they included it.).</p>\n", "score": 0 } ]

[ "criminal-law", "equal-protection" ]

[ { "answer_id": 92443, "body": "<h1>No</h1>\n<p>What it means is that no German can be forced by the government into a job, education or place of work. So for example, the Government cannot come and say &quot;we are short on railroad workers, the next 200 graduates of this school will report to Hamburg Station for training and become rail workers in Munich&quot;.</p>\n<p>That might be blindingly obvious <em>today</em>, but when this was written, the government that had just ceased to exist had heavily dictated who was allowed into which profession, not on personal qualification, but on things like faith, nationality, heritage and skin color. And <em>other</em> governments forming from the ashes right next door were indeed not capitalistic and their socialist central planning meant that they would direct at least parts of their workforce which jobs to take and sometimes even where.</p>\n<p>In contrast, in Western Germany, whether or not one becomes a rail worker, which company educates them and where they work in the end is their choice.</p>\n<p>Obviously choices are limited by reality. I can <em>choose</em> to be a railworker on an island in the North Sea, but I will be unemployed, because there is no rail line there and I won't get a permit to build my private one.</p>\n<p>I can <em>choose</em> to study philosophy, but if I cannot find an employer in need of philosophers, I will have to fall back on making money driving an Uber.</p>\n<p>I can <em>choose</em> to become a Pilot. But I will have a hard time finding a spare 747 to train on if I don't train with one of the big airlines. The may have their own, totally capitalistic goals. For example, contracts that say &quot;if we train you, you have to stay for X years and work for us or pay X amount of money&quot; are totally normal and legal in those businesses. And if their training center with the big 747 simulators is in city A, I can choose to train in city B, but I will obviously fail their program.</p>\n<p>So no, this law does not imply any kind of automatic success on a personal level. You still need to qualify for the training you want, be able to pay rent in the city you want to live in and find an employer that employs you, or customers to become a successful freelancer. Maybe you cannot do that for personal reasons. But the government will not dictate instead. You are then free to choose the next alternative.</p>\n", "score": 32 }, { "answer_id": 92437, "body": "<p>I don't think it can be interpreted that way, particularly due to the second sentence in your quote: <em>The practice of an occupation or profession may be regulated by a law.</em> And such laws (or at least articles) do exist, e.g. <a href=\"https://www.gesetze-im-internet.de/stgb/__132a.html\" rel=\"noreferrer\">§132a StGB</a> on the abuse of academic degrees. Whoever uses an academic title or certain professions (such as doctor or lawyer) without actually having such a degree risks a jail sentence.</p>\n<p>Since such a law is (arguably) in line with the above article from the basic law, you can't name yourself lawyer without the relevant degree. And hence you cannot <em>be</em> a lawyer.</p>\n", "score": 16 }, { "answer_id": 92438, "body": "<h2>Hell no!</h2>\n<p>The article you quote bans the government from banning a group of people from trying to achieve certain jobs. It was a direct answer to the Nuremberg Laws that the Nazis enacted to ban people of jewish faith from many professions.</p>\n<p>In a similar fashion, it does not allow to order people to work or train in a specific job like mandating people to construct a new factory or making ammunition - another thing that reflects to the WW2 times in which <em>Zwangsarbeit</em> (forced labor) was common without a court's judgment. This ban from ordering specific jobs to be performed has two carve-outs: Mandatory civil or military service is on the Grundgesetz and not covered by this preclusion (and not used since about 2010 anyway) and neither is being drafted for community fire brigades where there are no volunteers. In fact, Both of these carve-outs are in the Basic Law: fire service (and similar) are under 12(2), Military service is in 12a.</p>\n<p>As a different type of carve out, technically 12(3) might allow to force convicted people to work in certain fields, but instead of forcing inmates to work, they are offered to work for benefits and pay, as that furthers the goal of resocializing and reintegrating the convicted into society.</p>\n<p>Those demands to the politics however have nothing to do with the exams that regulate qualification to do certain jobs - and thus the argument that you <em>have to</em> get graduated fails. In fact, the fact that qualifications might be required is explicitly called out in the very paragraph: <em>The practice of an occupation or profession may be regulated</em></p>\n", "score": 9 }, { "answer_id": 92472, "body": "<p>As is the case so often — reflecting reality, after all! — there are <em>conflicting</em> basic rights. The one specifically conflicting here is <em>freedom of teaching</em> (&quot;Freiheit der Lehre&quot;), granted in <a href=\"https://www.gesetze-im-internet.de/gg/art_5.html\" rel=\"nofollow noreferrer\">Art. 5</a> Par. 3.</p>\n<p>This Basic Law article's gist is to prevent the government from directly prescribing what is taught in universities, and in which way it is taught. This was, of course, a reaction to the <a href=\"https://de.wikipedia.org/wiki/Universit%C3%A4t_im_Nationalsozialismus#Rechtliche_Umgestaltung\" rel=\"nofollow noreferrer\">National Socialist interference with universities</a> after 1933.</p>\n<p>The result is that universities are free to decide, for example, how they grade students and whom they let graduate under which conditions; the &quot;only&quot; requirement is that it doesn't violate other provisions in the Basic Law, for example the equality of men and women guaranteed in <a href=\"https://www.gesetze-im-internet.de/gg/art_3.html\" rel=\"nofollow noreferrer\">Art. 3</a>. They certainly could decide to let everybody graduate, and some do: For example, the left-wing political science faculty of the <em>Freie Universität Berlin</em> where I happened to study in the 1980s was forced by the authorities to document the achievements of students who wanted to become publicly employed teachers. In an act of defiance, they tasked the checkroom attendant with the job: She had &quot;office hours&quot; at the counter of the checkroom of the <em>auditorium maximum</em> once a week. She had an official stamp she would use to approve of the self-assembled lists of courses a student had allegedly visited. Obviously, she had no means of verifying the veracity of those lists; that was the whole point.</p>\n<p>Other departments have stricter requirements for graduating; it is their respective prerogative.</p>\n", "score": 3 } ]

[ "constitutional-law", "germany", "education" ]

[ { "answer_id": 79714, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\">united-states</a></p>\n<p>The treatment of how paternity is handled in cases of rape, from which child support and child custody determinations flow, varies by U.S. state in the United States as a result of an ongoing and recent wave of legislative innovation, prompted by cases in which convicted male rapists sought child custody in connection with children conceived in acts of rape for which they were convicted. A state by state summary of the applicable laws as of January 2020 (which oversimplifies the situation in which there are additional distinctions not noted, some of which are differences in wording that could be relevant to how these statutes apply in the OP case) can be found <a href=\"https://www.mylifetime.com/movies/you-cant-take-my-daughter/articles/how-parental-rights-for-rapists-vary-by-state\" rel=\"noreferrer\">here</a>.</p>\n<p><a href=\"https://i.stack.imgur.com/30rZL.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/30rZL.jpg\" alt=\"enter image description here\" /></a></p>\n<p>All of these laws are targeted at the case of a woman raped by a man who becomes pregnant, which is factually predominant, something that happens many thousands of times each year in the United States as a whole, and not at the case of a man who, in the course of being raped by a female, causes the female to become pregnant as a result.</p>\n<p>Cases of men being raped that are handled by the legal system, and do not involve statutory rape, predominantly involve sexual interaction that is not reproductive, i.e. something other than a man involuntarily having vaginal sex with a woman, often prison rape by a same sex inmate or rape with an object, and also, as in other cases of rape, often doesn't result in a conception of a child due to random chance. Likewise, many women convicted of rape are convicted as co-participants in a crime that involves physical penetration of a victim by a man or an object, rather than sexual intercourse with the woman convicted of the crime. So, the number of cases that could potentially be litigated with respect to this issue is much smaller.</p>\n<p>It is also worth noting that under U.S. criminal law, sexual intercourse procured by deception (other than deception regarding the person with whom one is having sex, for example, because of a blindfold or darkness, or deception regarding one's status as a medical practitioner making a medical examination, or as a law enforcement officer making a legally authorized cavity search) is not a crime and does not constitute rape.</p>\n<p>Also, generally speaking, having sex consensually in a manner not intended to lead to conception, which, in fact, does result in conception with consent to the sex giving rise to conception (e.g. where there is an agreement to &quot;pull out&quot; that isn't performed due to the acts of one or both parties involved), will almost never be prosecuted criminally as rape, whether or not a jury with perfect knowledge of the facts of the interaction could convict under the law of the minority of U.S. states where this might be possible.</p>\n<p>As @user6726 notes, the primary fact pattern related to the OP historically has involved instances of intercourse that are consensual in fact, but constitute statutory rape due to the age of the father which makes it impossible for him to legally consent, and in those cases, the default rule that the biological father of a child is recognized as the father for custody and child support purposes has been the predominant rule.</p>\n<p>But much of that case law predates modern rapist-paternity statutes and there is an equal protection argument that those statutes should have a parallel construction, although to the best of my knowledge, there are no reported appellate cases that have tested that issue. It remains an open issue of first impression in most, if not all, jurisdictions that have adopted rape-paternity statutes.</p>\n<p>In Minnesota, which had not adopted such a statute as of January 2020, being raped would not be a defense to a paternity, child custody, or child support claim.</p>\n", "score": 26 }, { "answer_id": 79705, "body": "<p>There is a substantial pattern of decisions to the effect that a male, being an underage minor legally incapable of consenting to sex, who fathers a child is still responsible for child support despite the potentially criminal nature of the circumstances. See <a href=\"https://www.leagle.com/decision/20041236104p3d113211228\" rel=\"noreferrer\">in re. Paternity of KB</a>, 104 P.3d 1132</p>\n<blockquote>\n<p>courts from other states confronting similar facts have uniformly\nconcluded legal consent under criminal law is irrelevant in a civil\naction for support of the child born of a minor father and an adult\nmother</p>\n</blockquote>\n<p><a href=\"https://www.leagle.com/decision/19991727985sw2d74211704\" rel=\"noreferrer\">Hamm v. OCSE</a>, 985 S.W.2d 742:</p>\n<blockquote>\n<p>The rule generally accepted in other jurisdictions is that a putative\nfather who had been below the age of consent for sexual intercourse\nunder criminal sexual conduct statutes at the time of conception is\nliable for supporting the child resulting from that union. Jevning v.\nCichos, 499 N.W.2d 515 (Minn.App.1993); see also Dept. of Rev.,\nBennett v. Miller, 688 So.2d 1024 (Fla.App. 5 Dist.1997); State Ex\nRel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993); Mercer\nCounty Dep't of Social Servs. v. Alf M., 155 Misc.2d 703, 589 N.Y.S.2d\n288 (N.Y.Fam.Ct.1992); In Re Paternity of J.L.H., 149 Wis.2d 349, 441\nN.W.2d 273 (App. 1989); Schierenbeck v. Minor, 148 Colo. 582, 367 P.2d\n333 (1961); 14 C.J.S. Children Out-of-Wedlock § 42 (Supp.1998).</p>\n</blockquote>\n<p>The reasoning in these decisions affirms by constantly reciting the fact that these are actually-consensual cases of intercourse despite the overarching doctrine that the minor is incapable of consent, which could easily provide a basis for distinguishing actually-nonconsensual rape of an adult male from the preceding circumstances. However, these cases also rely on the plain language of statutory requirements that a father must provide support for his child. While it would seem quite unjust to victimize a man twice in such a circumstance, the plain language of the statute says what it says, and it is (traditionally, in the US) the duty of the legislature and not the courts to write laws. Since there does not appear to be case law that directly addresses the matter, it's not a forgone conclusion how such a case would be resolved but the weight of precedent is in favor of the statutorily-mandated paternal obligation, lack of consent notwithstanding.</p>\n", "score": 21 } ]

[ "rape", "child-support" ]

[ { "answer_id": 83280, "body": "<h2>No</h2>\n<p>One of the fundamental <a href=\"https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid\">requirements</a> for an enforcable contract is that there must be agreement - you cannot agree to something you can't know. You can agree to something you don't know if you were given the opportunity to find out and didn't.</p>\n<p>However, the information you receive is not part of a contract since there is no consideration flowing from you to the Registry. Therefore, it must be a gift. However, gifts cannot come with conditions subsequent; I can impose conditions that you need to satisfy before I will give you the gift but I cannot require anything of you afterwards - that would make it a contract. Note that if you doing the conditions <em>requires</em> me to give the gift, then that makes it a contract too, however, if I still have discretion about giving the gift even if you fulfill the conditions, it's still a gift.</p>\n<p>For your first call to a .edu domain, you would not be bound by this condition. For all subsequent calls, you would be.</p>\n<p>Of course, &quot;the transmission of unsolicited commercial advertising or\nsolicitations via e-mail&quot; is illegal anyway.</p>\n", "score": 1 } ]

[ "united-states", "contract-law" ]

[ { "answer_id": 57273, "body": "<h2>Yes, a person can be charged with the murder of person or persons unknown</h2>\n<p>The reason that police are really keen to identify the victim include (in no particular order):</p>\n<ol>\n<li>It will probably clear up a missing persons case;</li>\n<li>So they can inform the next-of-kin;</li>\n<li>Being able to place a named person who loved and was loved before a jury rather than nameless corpse increases the chance of conviction - all else being equal.</li>\n</ol>\n", "score": 34 }, { "answer_id": 92464, "body": "<p>In the U.S., John Wayne Gacy, one of the more infamous serial killers (famous for having a hobby of being a clown, though this was not used with his murder MO) was convicted on 33 counts of murder, all of whom were teenage or young adult males who Gacy sexually abused prior to their deaths. At time of his trial, 11 of the victims he was eventually convicted of killing were unidentified. Of those 11, 2 were identified while the trial was ongoing, an additional 4 were identified following Gacy's conviction, the most recent of which was identified in October of 2021. At least one of the 4 post-conviction bodies that remained unidentified until the renewed effort that begun in 2011 was long suspected by the victim's parents, however, they were unable to provide dental records as their family dentist had recently retired and all his records were destroyed.</p>\n<p>While a reason was not asked, the renewed effort to identify Gacy's unidentified victims has led to the closing of four unrelated cold cases dating back as far as 1972 and ruled out several cases that Gacy was suspected of but never convicted of.</p>\n<p>At time of writing, 5 of Gacy's victims remain unidentified, however all unidentified victims had viable DNA samples collected, as of October 2011.</p>\n", "score": 0 } ]

[ "criminal-law", "england-and-wales", "murder" ]

[ { "answer_id": 88560, "body": "<p>The “decss haiku” consists, in primary part, of a long string of numbers, split up into lines by syllables. It was a clever joke, but anyone who feels that encryption keys are stripped of any legal protection by making them into “poetry” fundamentally misunderstands the difference between telling a computer to do something and telling a judge to do something.</p>\n<p>In any case, however, the finding that the encryption key was covered by trade secret protections was <a href=\"https://www.cnet.com/culture/court-decss-ban-violated-free-speech/\" rel=\"nofollow noreferrer\">reversed on appeal</a>.</p>\n", "score": 6 } ]

[ "united-states", "copyright", "freedom-of-speech", "first-amendment" ]

[ { "answer_id": 92245, "body": "<p>An alibi is a particular kind of defense strategy bearing on the burden of proof: <a href=\"https://www.justia.com/criminal/docs/calcrim/3400/3400/\" rel=\"noreferrer\">here is the alibi jury instruction</a> for California.</p>\n<blockquote>\n<p>The defendant contends (he/she) did not commit (this/these) crime[s]\nand that (he/she) was somewhere else when the crime[s] (was/were)\ncommitted. The People must prove that the defendant was present and\ncommitted the crime[s] with which (he/she) is charged. The defendant\ndoes not need to prove (he/she) was elsewhere at the time of the\ncrime.</p>\n</blockquote>\n<p>&quot;I had put the gun down&quot; is not an alibi defense, &quot;I was not in my right mind at the time&quot; is not an alibi defense. The alibi defense is essentially a formality that clarifies the logic of &quot;reasonable doubt&quot; for the jury. If the defendant could not have committed the crime because they weren't there, then that is the end of the discussion.</p>\n<p>The prosecution will introduce various facts that suggest that the defendant may have committed the crime. The &quot;reasonable doubt&quot; instruction is widely interpreted by jurors to involve a defense obligation to disprove that evidence, which is a reason why a number of jurisdictions have adopted a different instruction based on &quot;being firmly convinced&quot;. Reasons to doubt prosecution evidence can be weak and highly speculative, and the courts have struggled for years to find a good way to convey exactly what &quot;reasonable doubt&quot; is. An alibi goes way beyond merely detracting from the prosecution's case.</p>\n<p>An alibi is not an affirmative defense where you have to prove the claim by a preponderance of evidence. If you can establish that you were somewhere else when the crime happened, had no opportunity to have committed the crime and could not have committed the crime by another means, you have defended yourself against the charge (assuming that the prosecution does not successfully challenge the credibility of the alibi witness). And in California, you have to give notice that you intend to use the alibi defense.</p>\n", "score": 21 }, { "answer_id": 92243, "body": "<p>In most countries, the following happens before a conviction:</p>\n<ol>\n<li>The police believes the suspect to be guilty and passes the case to the prosecution. If the police don't believe the suspect is guilty, the suspect is not a suspect any more.</li>\n<li>The prosecution believes that they can win the case, based on the evidence, and files the case in court. This is not just a professional judgement of the guilt of the defendant but also of the sufficiency of the evidence. If they do not think that they can win, it is the duty of the prosecution to stop wasting taxpayer money.</li>\n<li>The prosecution convinces the judge or jury that the evidence shows guilt beyond reasonable doubt.</li>\n</ol>\n<p>If an innocent defendant reaches step 3, there must be evidence which can be <strong>misconstrued</strong> to show guilt. At this point, just saying <em>&quot;I plead not guilty and there is reasonable doubt&quot;</em> is a terribly risky defense strategy. It gambles that the judge or jury will not make the same mistake as the prosecution.</p>\n<p>So it makes sense to show evidence of innocence (the alibi) to rebut the evidence of the prosecution.</p>\n", "score": 12 }, { "answer_id": 92232, "body": "<p>The phrase &quot;innocent until proven guilty&quot; is often misunderstood, not least because it isn't the whole phrase; it omits the the word &quot;presumed.&quot;</p>\n<p>An accused party is not literally held to be innocent until proven guilty but is rather <em>presumed</em> to be innocent until proven guilty. The primary effect of this presumption is to place the burden of proof on the prosecution.</p>\n<p>One may indeed then reasonably ask what the role of alibi is in such a system. Why must a defendant (or a suspect) show that he or she was not in the place where the crime was committed at the time of commission? The answer is that this isn't in fact necessary unless the prosecution (or investigators) have some other evidence that tends to suggest that the defendant did commit the crime.</p>\n<p>For example, if Alice owns a red 1969 Ford Mustang and Bob was seen to have been shot dead by the driver of a red 1969 Ford Mustang then this is evidence of Alice's guilt even though there are other possible explanations. A prosecutor can present this evidence at trial, and one response to this evidence could be for Alice to submit that she and her car were somewhere else at the time, leaving the &quot;trier of fact&quot; to make sense of the conflicting submissions. Alice could also simply argue that the prosecutor hadn't proven that the car from which Bob was shot was Alice's nor that Alice was in the car, much less that Alice had pulled the trigger, but you can see that this is a somewhat weaker argument. &quot;It couldn't have been Alice&quot; is a stronger statement than &quot;you haven't shown that it was Alice.&quot;</p>\n<p>In the early stages of an investigation, as we frequently see in fictional depictions, investigators use alibi to narrow the scope of their task. They may not at that point have sufficient evidence -- or any evidence at all -- to suggest that Alice killed Bob, but if they can establish quickly that Alice couldn't have killed Bob then they can save themselves a lot of work investigating Alice.</p>\n<hr />\n<p>To put it another way, inspired by Sneftel's comment asking about &quot;other evidence presented in defence,&quot; the prosecutor must present evidence of the defendant's guilt, but the defendant can present evidence to counter or &quot;rebut&quot; the prosecutor's evidence. Alibi is just one category of such evidence.</p>\n<p>In a system where suspects have no obligation to respond to police questioning, suspects are not obliged to present an alibi if asked, even if they are in fact innocent of the crime under investigation (for example, they may have been committing another crime at the time). Defendants similarly do not need to present alibi evidence at trial; they may use other means to rebut prosecutors' evidence, or they may even refrain from doing so and accept a conviction for a crime they did not commit.</p>\n", "score": 9 }, { "answer_id": 92252, "body": "<p>Proof beyond a reasonable doubt does not require that a prosecutor show that there is no conceivable string of coincidences which would be be consistent with the evidence even if the accused was not guilty, but merely that any such string of coincidences be sufficiently unlikely as to be implausible.</p>\n<p>If the defendant has a distinctive red head resembling Lucille Ball, and someone who looked like that was caught on video robbing a store, and a defendant is found in the neighboorhood fairly soon thereafter, it may be possible that the defendant had just driven into the neighborhood at the same time as someone else who looked like Lucille Ball had robbed the store, but that would generally be unlikely.</p>\n<p>If, however, the defendant could prove that the defendant had just entered the neighborhood after performing a comedy routine in front of a large audience, and that the defendant was on stage at the moment the robbery was taking place, that would suggest that there <em>must</em> have been some other red head in the neighborhood, even though that would seem an unlikely coincidence.</p>\n<p>Alternatively, a defendant might introduce evidence that there was a Lucille Ball lookalike contest in the neighborhood, and that while her hairdo might have been distinctive compared to the population at large, it would have not stood out at all from many of the other women in the contest. This wouldn't be an alibi as such, but would again serve the purpose of showing that what might have seemed an implausibly unlikely coincidence had quite possibly in fact happened.</p>\n<p>Note that some jurisdictions may require that claimed alibis be made available to the prosecution before trial. This is done to ensure that the prosecution has a fair chance to vet any alibi witnesses, determine whether they are reliable, and ensure that the jury is made aware of any evidence that might suggest the alibi witness is not especially reliable. It would also ensure that the prosecution can identify any evidence such as video takes to determine whether they might have been falsified. A prosecutor isn't allowed to simply say in trial &quot;We have no way of knowing for certain whether the defendant's video might have been faked&quot;, inducing speculation that it might be. Instead, the prosecutor must be given time to find evidence--if any exists--of the falsification.</p>\n", "score": 3 }, { "answer_id": 92231, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>&quot;Any person charged with an offence has the right... <strong>to be presumed innocent until proven guilty</strong> according to law...&quot; (<em>Charter</em>, s. 11(d)).</p>\n<p>When it appears to the defence that the prosecution will otherwise prove the offence, there will often be a <em>practical</em> burden on the defendant to introduce their alibi in order to introduce reasonable doubt about their guilt.</p>\n<p>See Justice Pigeon's explanation in <em>R. v. Proudlock</em> (1978), <a href=\"https://canlii.ca/t/1mktb\" rel=\"nofollow noreferrer\">[1979] 1 S.C.R. 525</a>.</p>\n<blockquote>\n<p>If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction.</p>\n</blockquote>\n<p>However, the burden is always on the prosecution to prove the guilt of the defendant beyond a reasonable doubt. A typical jury instruction includes a phrase such as:</p>\n<blockquote>\n<p>Even if you are not left in a reasonable doubt by the evidence in support of the defence of alibi, you must still go on to determine whether or not on the basis of all the evidence the accused is guilty.</p>\n<p>(<em>R. v. Hibbert</em>, <a href=\"https://canlii.ca/t/51s0#par55\" rel=\"nofollow noreferrer\">2002 SCC 39 at para. 55</a>)</p>\n</blockquote>\n", "score": 1 }, { "answer_id": 92340, "body": "<ul>\n<li><p>A defendant is asked to provide an alibi during a trial. It means that there was already enough evidence to prosecute the defendant. In this case the alibi is needed to counter that evidence. Absence of an alibi does not mean that the defendant is immediately considered guilty, but it makes more likely a guilty verdict at the end of the trial.</p>\n</li>\n<li><p>A suspect is asked to provide an alibi during an interrogation by the police. In this case it is in the interest of the suspect to provide an alibi to avoid being investigated and eventually prosecuted. Providing immediately an alibi is not mandatory, but providing that alibi later without a reasonable explanation might make it appear fabricated.</p>\n</li>\n</ul>\n", "score": 0 } ]

[ "criminal-law" ]

[ { "answer_id": 92459, "body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a> <strong>Yes, both for civil and criminal law, but in different ways.</strong></p>\n<p>The general principle of civil law in France (and I believe every <a href=\"/questions/tagged/civil-legal-system\" class=\"post-tag\" title=\"show questions tagged &#39;civil-legal-system&#39;\" aria-label=\"show questions tagged &#39;civil-legal-system&#39;\" rel=\"tag\" aria-labelledby=\"tag-civil-legal-system-tooltip-container\">civil-legal-system</a> jurisdiction) is that one is liable for any damage they cause through fault. Of course, details differ greatly between what is considered a damage, what are the standards to prove causation or fault, etc.</p>\n<p><a href=\"https://www.legifrance.gouv.fr/juri/id/JURITEXT000036584595/\" rel=\"nofollow noreferrer\">Cour de cassation, civile, Chambre civile 2, 18 janvier 2018, 16-28.392</a> specifically endorsed a lower court reasoning that distinguished between <em>préjudice moral</em> (moral damage) and <em>préjudice psychologique</em> (psychological damage). The latter is about quantifiable medical damage (even if mental rather than physical), while the former covers grave breaches of wellbeing. In the case at hand, a couple was assassinated when their child was two years old; the child later developed severe psychic disorders as a result of the trauma; it was found that a compensation for the <em>préjudice moral</em> of losing his parents at a young age did not foreclose a later suit for the <em>préjudice psychologique</em> of developing mental troubles (which became visible much later in his life).</p>\n<p>To be honest, I would be extremely surprised if <em>any</em> jurisdiction recognized no cause of action for any type of psychological damage. There might be issues of burden of proof etc. such that <em>in practice</em> suing for psychological damage is unviable, but a complete bar on any civil action predicated on psychic damage seems unthinkable.</p>\n<hr />\n<p>Regarding criminal law, many assault-type crimes are scaled by gravity. That gravity is evaluated by days of &quot;complete inability to work&quot; (search <em>incapacité totale de travail</em> through <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006149827/#LEGISCTA000006149827\" rel=\"nofollow noreferrer\">that section of the penal code</a>). While the notion has been standardized by work law cases, it also applies outside a work context when the damage prevents one from doing basic life actions (children, retirees or the unemployed can be subject to a &quot;complete inability to work&quot;). Whether the damage that caused it was physical or mental is irrelevant.</p>\n<p>Two notes though:</p>\n<ul>\n<li>physical damage resulting from assault is more easily quantified by that scale than mental damage. If a mob boss breaks your bones, you spend one month in the hospital, and then you get out roughly healed; it’s easy to say that it cost you one month of your life. If the same mob boss kills your wife in a gruesome manner, you might be haunted for life, but still be able to work, feed yourself etc., past one or two days of shock. &quot;Low-level&quot;, long-lasting damage is not well-measured that way.</li>\n<li>quantifying the duration of a &quot;complete inability to work&quot; depends on the victim’s active cooperation with the prosecution (such as going to see a doctor to get a certificate). That is possible because the civil and criminal causes of actions are usually joined in a single trial, during which the victim will try to prove injury. (It is possible for the victim to open a separate civil trial, but that’s usually not a good idea. The same exact remedies are available by joining in the criminal trial; usually the prosecutor has the same goals as you in proving the facts, so why not let them do it and save some lawyer fees?) It would probably not be reasonable in a <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged &#39;common-law&#39;\" aria-label=\"show questions tagged &#39;common-law&#39;\" rel=\"tag\" aria-labelledby=\"tag-common-law-tooltip-container\">common-law</a> system with separate trials. It also breaks down in certain cases (e.g.: in a good fraction of spousal abuse cases, the victim refuses to testify against the accused).</li>\n</ul>\n", "score": 3 }, { "answer_id": 92301, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>I am not aware of any such statute. Often, assault crimes are graded between those that result in merely &quot;bodily injury&quot; and those that result in &quot;serious bodily injury.&quot;</p>\n<p>Sometimes there are offense enhancers for assaults on children, pregnant women, or &quot;at risk&quot; individuals (such as elderly people), and for assaults on law enforcement and other first responders.</p>\n<p>If an assault occurs in the course of a robbery, burglary, kidnapping, or rape, the assault is often a sentencing enhancer for those crimes.</p>\n<p>In some cases, conduct giving rise to a criminal charge of assault would also give rise to a criminal charge of &quot;menacing&quot; which is similar to the common law crime and tort of &quot;assault&quot;. Modern terminology in statutes frequently refers to the common law crime and tort of &quot;battery&quot; as &quot;assault&quot;, even though the common law meaning of the word was to place someone in apprehension of imminent battery rather than meaning battery itself.</p>\n<p>But, psychological impact, such as PTSD, is not normally not considered in determining is serious injury, often specifically defined as &quot;seriously bodily injury&quot; has occurred.</p>\n<p>This said, typically, an offense of conviction involves a range of possible punishments decided upon in a post-conviction sentencing hearing. At such a hearing, the impact of the crime on the victim, including a PTSD impact, would frequently be presented as an aggravating factor to guide the sentencing decision within the allowed range of sentences for an offense.</p>\n<p>So, for example, a simple assault resulted in PTSD for the victim of the assault, and the permissible sentencing range for the offenses was 1 day to 2 years of incarceration, evidence that the assault had severe psychological consequences, despite resulting in only modest bodily harm, would argue for a sentence towards the high end of the allowed range of sentences.</p>\n", "score": 1 }, { "answer_id": 92315, "body": "<h2>Yes</h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged &#39;new-south-wales&#39;\" aria-label=\"show questions tagged &#39;new-south-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<p>Assault that results in actual or grievous bodily harm attract progressively more severe punishments than assaults that don’t. The case law <a href=\"https://www.gotocourt.com.au/criminal-law/nsw/assault/\" rel=\"nofollow noreferrer\">recognises</a> psychological injury as bodily harm.</p>\n", "score": 1 } ]

[ "assault", "any-jurisdiction" ]

[ { "answer_id": 88021, "body": "<h2>It excludes pain and suffering incidental to lawful <a href=\"https://en.wikipedia.org/wiki/Capital_punishment\" rel=\"nofollow noreferrer\">capital</a> and <a href=\"https://en.wikipedia.org/wiki/Corporal_punishment\" rel=\"nofollow noreferrer\">corporal</a> punishment</h2>\n<p>Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering.</p>\n<p>Similarly, corporal punishment such as <a href=\"https://en.wikipedia.org/wiki/Caning#Judicial_corporal_punishment\" rel=\"nofollow noreferrer\">caning</a> is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture.</p>\n<p>It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal.</p>\n<p>Now, organisations like <a href=\"https://www.9news.com.au/national/cane-singapore-andrew-gosling-rattan-caned-malaysia-brunei-indonesia-crime-news/9474ddc2-62fb-44e9-a047-fe2ff6b16b7d\" rel=\"nofollow noreferrer\">Amnesty International</a> consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture.</p>\n", "score": 3 }, { "answer_id": 88073, "body": "<p>There are several views as to the meaning of the &quot;lawful sanctions&quot; exception.</p>\n<h3>The sanctions must be of the kind widely accepted as legitimate</h3>\n<p><a href=\"https://en.wikipedia.org/wiki/United_Nations_special_rapporteur\" rel=\"noreferrer\">Special Rapporteur</a> on torture, <a href=\"https://en.wikipedia.org/wiki/Nigel_Rodley\" rel=\"noreferrer\">Nigel S. Rodley</a>, was tasked by the U.N. Commission on Human Rights to report on the practice of corporal punishment through the lens of various human rights instruments, including the UNCAT. He reported (<a href=\"https://documents-dds-ny.un.org/doc/UNDOC/GEN/G97/101/13/PDF/G9710113.pdf?OpenElement\" rel=\"noreferrer\">E/CN.4/1997/7</a>):</p>\n<blockquote>\n<p>the &quot;lawful sanctions&quot; exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. Deprivation of liberty, however unpleasant, as long as it comports with basic internationally accepted standards... is no doubt a lawful sanction. <strong>By contrast</strong>, the Special Rapporteur <strong>cannot accept the notion that the administration of such punishments as stoning to death, floggin and amputation -- acts which would unquestionably be unlawful in, say, the context of custodial interrogation -- can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order</strong>. To accept this view would be to accept that any physical punishment,\nno matter how torturous and cruel, can be considered lawful, as long as the\npunishment had been duly promulgated under the domestic law of a State.</p>\n</blockquote>\n<h3>The Committee Against Torture has said all corporal punishment violates the Convention Against Torture</h3>\n<p>See Concluding Observations on South Africa, <a href=\"https://documents-dds-ny.un.org/doc/UNDOC/GEN/G07/403/24/PDF/G0740324.pdf?OpenElement\" rel=\"noreferrer\">UN Doc. CAT/C/ZAF/CO/1, 2006</a>, §25:</p>\n<blockquote>\n<p>The State party should ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities.</p>\n</blockquote>\n<h3>The &quot;lawful sanctions&quot; exception does not expand what is allowed under the Convention Against Torture because article 16 is more restrictive anyway</h3>\n<p>Article 16 forbids &quot;other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture&quot; anyway, with no exception for &quot;lawful sanctions.&quot; Article 1's &quot;lawful sanctions&quot; exception, when read in conjunction with Article 16, may be meaningless. See C.E.F. Coracini, &quot;<a href=\"https://journals.sagepub.com/doi/pdf/10.1177/016934410602400205\" rel=\"noreferrer\">The Lawful Sanctions Clause in the State Reporting Procedure Before the Committee Against Torture</a>&quot; (2006) 24 Netherlands Quarterly of Human Rights 305, p. 317:</p>\n<blockquote>\n<p>If the sole arguable application of the 'lawful sanctions' clause is to prevent the treatment of prisoners, consistent with international standards, from falling within the threshold of the concept of torture, and considering that the treatment of prisoners in accordance with international law should not violate the prohibition of torture, the clause is potentially a useless provision, which at the present time, ought not to be taken into account by interpreters.</p>\n</blockquote>\n<h3>Another view is that this is not clearly resolved</h3>\n<p><a href=\"https://en.wikipedia.org/wiki/World_Organisation_Against_Torture\" rel=\"noreferrer\"><em>Organisation Mondiale Contre la Torture</em></a> (OMCT) says in their <a href=\"https://www.omct.org/site-resources/legacy/handbook4_eng_04_part4_2020-12-11-144643.pdf\" rel=\"noreferrer\">handbook</a>:</p>\n<blockquote>\n<p>the issue is not resolved, and it may be that this exception exempts even the cruellest treatment from classification as &quot;torture&quot; if such treatment is authorised by domestic law. [citing Johan D. van der Vyver, &quot;Torture as a Crime Under International Law&quot; (2003) 67 Albany Law Review 427, p. 432]</p>\n</blockquote>\n<h3>Domestic implementation</h3>\n<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"united-states-container\">united-states</a></p>\n<p>The United States, in the context of its extradition regulations made to comply with the UNCAT, understands &quot;lawful sanctions&quot; to include (see <a href=\"https://www.law.cornell.edu/cfr/text/22/95.1\" rel=\"noreferrer\">22 C.F.R. § 95.1</a>):</p>\n<blockquote>\n<p>judicially imposed sanctions and other enforcement actions authorized by law, provided that such sanctions or actions were not adopted in order to defeat the object and purpose of the Convention to prohibit torture</p>\n</blockquote>\n", "score": 2 } ]

[ "treaty" ]

[ { "answer_id": 92458, "body": "<h2>Check your license!</h2>\n<p>By operating the original client, you might have agreed to a license, the EULA. Check that license for what it says about you being allowed to do with the product.</p>\n<p>In a recent case of <a href=\"https://www.courtlistener.com/docket/60204895/bungie-inc-v-elite-boss-tech-incorporated/\" rel=\"noreferrer\">Bungie vs. Elite Boss Tech</a>, a US court found in a <a href=\"https://ia804501.us.archive.org/23/items/gov.uscourts.wawd.302469/gov.uscourts.wawd.302469.75.1.pdf\" rel=\"noreferrer\">default judgment</a> that a certain cheat software that would interact with both the game's client and the company's servers among other things did...</p>\n<ul>\n<li>constitute copyright infringement [as a derivative work]</li>\n<li>was a breach of contract [formed by the EULA and agreeing to the Terms of Service for the game]</li>\n<li>was interference with Contractual allegations [of other users that obtained the software]</li>\n</ul>\n<p>However, not all internet games or experiences are locked down like that. Other companies do offer an open API set or terms under which a client's software may be modified. As a very generous example, <a href=\"https://www.lindenlab.com/\" rel=\"noreferrer\">LindenLabs</a> does for its SecondLife Virtual World, <a href=\"https://wiki.secondlife.com/wiki/APIs_and_Web_Services_Portal\" rel=\"noreferrer\">for which they provide not just the framework</a>, but also <a href=\"https://secondlife.com/corporate/third-party-viewers\" rel=\"noreferrer\">the terms under which you are allowed to make a third party <em>Viewer</em></a></p>\n<p>Sometimes, the Terms of service are rather hidden. For example, the <a href=\"https://senseis.xmp.net/?FoxWeiqi\" rel=\"noreferrer\">Chinese Go platform Fox Weiqi</a> operates in china. To get to the terms of service, you need to download the free client, go to <em>Settings</em> (via the cog), then choose 野狐围棋用户协议, which is Chinese for Wild Fox Go User Agreement. This links to <a href=\"https://edu.foxwq.com/complex/useragreement.html\" rel=\"noreferrer\">https://edu.foxwq.com/complex/useragreement.html</a>. The user agreement is of course in Chinese, but Google Translate manages to get that to English. It contains the following clause:</p>\n<blockquote>\n<p>7.2 Unless permitted by law or with the written permission of Yehu, you shall not engage in the following acts during the use of this software:</p>\n<p>( 1 ) Delete the copyright information on the software and its copies;</p>\n<p>( 2 ) <strong>Reverse engineer, reverse assemble, reverse compile the software</strong>, or try to find the source code of the software in other ways;</p>\n<p>( 6 ) Log in or use Yehu Go and its services <strong>through third-party software</strong>, plug-ins, plug-ins, systems not authorized by Yehu, or make, publish, and disseminate the above tools;</p>\n<p>( 7 ) <strong>Interfering with the software</strong> and its components, modules, and data <strong>by</strong> itself or authorizing others or <strong>third-party software</strong></p>\n</blockquote>\n<p><a href=\"https://ironcladapp.com/journal/contracts/terms-and-conditions-legally-binding/\" rel=\"noreferrer\">While it takes a court to see if the terms hold water and are actually enforceable because of how the EULA is offered</a>, the face value of those clauses is, that it is forbidden unless you have a specific law that allows such or you obtain written permission.</p>\n<p>With that kind of possible liability that might cost millions, there might be serious legal problems. <strong>Read your license agreement and terms of service</strong> and consult a lawyer.</p>\n", "score": 7 } ]

[ "licensing", "open-source-software" ]

[ { "answer_id": 91563, "body": "<h2>Yes, you are trespassing</h2>\n<p>Someone with the ostensible authority of the owner (the security guard) has revoked your permission to be on the property. If you remain in spite of this, you are trespassing.</p>\n<p>Whether the guard had the actual authority to do so or was actually wrong to do so is something you don’t know and, in any event, is irrelevant to the particular circumstances. Your obligation in the moment is to comply with the direction and leave the premises.</p>\n<p>At a latter date, you can clarify the issue with someone higher up in the organization. If it turns out you can use the main roads, ask them to confirm that in writing and keep that document with you for the next time you are challenged.</p>\n", "score": 2 } ]

[ "property", "us-federal-government", "trespass", "trespassing" ]

[ { "answer_id": 4648, "body": "<h2><a href=\"https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat\" rel=\"noreferrer\">Ignorantia juris non excusat</a></h2>\n\n<p>You can say I didn't know: it won't keep you out of jail.</p>\n\n<p>Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if:</p>\n\n<ul>\n<li>you don't know what the law is,</li>\n<li>you didn't think the law applied to you,</li>\n<li>you thought what you were doing was in accordance with the law.</li>\n</ul>\n\n<p><strong>\"Break the law\"</strong> is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of <em>mens rea</em> or \"the guilty mind\" has almost universally been done away with.</p>\n\n<p>Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage <em>under US law</em> may qualify for this defence.</p>\n", "score": 14 }, { "answer_id": 7702, "body": "<p>One line for Alice to pursue, is that <em>in general</em> a country will not extradite someone (even a citizen of the country requesting extradition) on charges that are not a crime in that country. Country X won't hold a full criminal trial to establish this, but they will have some standard (which varies according to what extradition treaties they have with the US) that extradition charges must meet in order to be considered.</p>\n\n<p>irth's answer contains a case that may or may not be an exception to this rule (I don't know whether it was ruled that he would be extradited despite nothing having been done that Canada considers an offence, or whether Canada found a way to construe what he was charged with as being an offence). But even if the general principle doesn't always hold in Canada and didn't help that person, it may still be relevant to Country X and to Alice.</p>\n\n<p>So, if the act <em>is</em> a crime in country X then since it occurred in country X on the whole X won't extradite because they will instead prosecute. And if the act is <em>not</em> a crime in country X then Alice may hope that X declines to extradite. <strong>This depends entirely on the law of country X</strong> (well, plus I suppose any diplomacy the US might bring to bear against X to \"encourage\" a particular verdict). Firstly they must refuse to extradite such cases, and secondly they must determine that Alice's US citizenship does <em>not</em> alter the relevant age of consent for her. Even if she wins, it's still not an ideal outcome for Alice. She may find herself unable to visit any countries in which her act <em>would be</em> a crime, for fear that unlike X they would indeed arrest and extradite her to the US.</p>\n\n<p>So for example, suppose the US were to make it a crime for any US citizen to reside abroad (never mind whether that's constitutional: let's just say the US changes the constitution too if necessary!). Then one would <em>not</em> expect every country of the world to arrest and extradite all US citizens resident in that country, and <em>especially</em> not to do so for their own nationals who are US dual citizens. I've exaggerated the situation to something that quite clearly other countries do not considers a crime, just to remove any doubt that country X would consider the charges in the extradition request to be non-crimes.</p>\n", "score": 6 }, { "answer_id": 32638, "body": "<p>A perhaps better example of the general principle. It is illegal under US law for US citizens to engage in commercial bribery in a non-US country, even if such acts are not illegal under local law. (I believe that the UK has a similar law.) The country where the bribery took place might or might not extradite a person charged with such an act, but many other countries surely would, and if such a person were to visit the US s/he could surely be arrested.</p>\n\n<p>This avoids the complications of laws about sexual acts.</p>\n", "score": 4 }, { "answer_id": 92453, "body": "<p>As cpast already pointed out in the comments, it would not actually be illegal under US law for an 18 year old US citizen to have sex with a 17 year old in a country whose local law permits such sexual relationships. Bob would need to be under the age of 12, or Bob would need to be under the age of 16 with Alice being at least 4 years older than Bob, in order for the US law in question to apply.</p>\n<p>If Alice were 20 and Bob were 15, then it would be illegal under US law for Alice, being a US citizen, to have sex with Bob while outside the US.</p>\n<p>I'll address the issue of extradition momentarily. If Alice is in the US and is prosecuted by the US for the offence, Alice can <em>probably</em> use the fact that she didn't know she was a US citizen as a defense against 18 USC §2423(c). In <a href=\"https://en.wikipedia.org/wiki/Kawakita_v._United_States\" rel=\"nofollow noreferrer\"><em>Kawakita v. United States</em></a> (1952), the government was required to prove that Kawakita knew he was still a US national at the time when he committed the alleged acts, because only US nationals can commit treason against the US. <a href=\"https://en.wikipedia.org/wiki/Rehaif_v._United_States\" rel=\"nofollow noreferrer\"><em>Rehaif v. United States</em></a> (2019) concerned a law where one of the elements of the offense is <em>not</em> being a US national, and in fact not having a lawful status in the US. In that case, the Supreme Court held that the government must prove that Rehaif knew that he didn't have a lawful status.</p>\n<p><em>However,</em> the government could argue in the case of Alice that having US citizenship or lawful permanent resident status is a <em>jurisdictional element</em> of an offense under §2423(c) rather than a <em>material element</em>, thus distinguishing Alice's case from <em>Kawakita</em> and <em>Rehaif</em>. The prosecution is not required to prove that the defendant had knowledge of a jurisdictional element. For example, if you're smoking marijuana while strolling through a forest in Canada, and you happen to step into the United States without knowing that you've stepped into the United States, you can be convicted under US law despite the fact that you didn't know you were in the US. So, if US citizenship is held to be a jurisdictional element in §2423(c), Alice could be convicted without the government needing to prove that she knew she was a US citizen. (To be honest, I'm not sure how to tell whether it's a jurisdictional or material element. I'm not a lawyer and I've never been to law school. I imagine this is one of those things they teach people in law school, only for most students to forget shortly after passing the bar exam.)</p>\n<p>Regarding extradition:</p>\n<h3>If the act is legal under local law</h3>\n<p>Extradition is generally not required in cases where the act upon which the extradition request is based is legal under local law (the so-called <a href=\"https://en.wikipedia.org/wiki/Double_criminality\" rel=\"nofollow noreferrer\"><em>dual criminality</em></a> doctrine). However, some countries' laws do <em>permit</em> (not <em>require</em>) the authorities, at their discretion, to extradite people for acts that are legal under local law.</p>\n<h3>If the act is illegal under local law</h3>\n<p>Alice will generally be tried and punished under the law of the country where the offence occurred. Extradition treaties and domestic extradition laws usually don't require extradition in such circumstances, <em>i.e.</em>, the country where the offence occurred is not required to extradite Alice for the purposes of having her tried and punished a second time in the requesting country. Again, some countries probably <em>permit</em> (but do not <em>require</em>) the authorities to approve a request to extradite someone out of the country under such circumstances.</p>\n", "score": 1 } ]

[ "united-states", "criminal-law" ]

[ { "answer_id": 92452, "body": "<p>The scope of the GDPR is entered when personal data is being processed in a structured manner.</p>\n<p>Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). &quot;Peter attended the meeting on the 14th&quot; is personal data. &quot;That woman with the blue handbag said she wanted to return on the 25th&quot; is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. &quot;On the 14th, we had 25 attendees&quot; is not personal data.</p>\n<p>Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data</p>\n<ul>\n<li>is processed wholly or partially with automated means (e.g. computers, smartphones), or</li>\n<li>forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists)</li>\n</ul>\n<p>If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means:</p>\n<ul>\n<li>having a clear purpose for processing</li>\n<li>selecting a suitable Art 6 legal basis for that purpose (e.g. <em>consent</em> or a <em>legitimate interest</em>)</li>\n<li>only processing the minimum data necessary for achieving that purpose</li>\n<li>determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities</li>\n<li>preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects</li>\n</ul>\n<p>There are of course some complexities in the details. When the legal basis is &quot;consent&quot; (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using &quot;legitimate interest&quot; (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur.</p>\n<p>Regarding <strong>point 1</strong>, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like &quot;0-4 attendees, 5-9 attendees&quot; for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals.</p>\n<p>Regarding <strong>point 2 and 3</strong>, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this.</p>\n<p>On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&amp;M's EUR 35 million fine back in 2020 (summary on <a href=\"https://gdprhub.eu/index.php?title=HmbBfDI_-_H%26M\" rel=\"noreferrer\">GDPRHub.eu</a>). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed.</p>\n<p>In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles.</p>\n", "score": 20 } ]

[ "gdpr", "data-protection", "non-profit" ]

[ { "answer_id": 92448, "body": "<p><a href=\"/questions/tagged/new-zealand\" class=\"post-tag\" title=\"show questions tagged &#39;new-zealand&#39;\" aria-label=\"show questions tagged &#39;new-zealand&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-zealand-tooltip-container\">new-zealand</a></p>\n<p>The New Zealand Supreme Court describes judicial immunity as &quot;common law doctrine&quot;:</p>\n<blockquote>\n<p>Judicial immunity is common law doctrine [citing to the English line of case law, including <em>Sirros</em>]. Although its existence is now acknowledged in statute, its scope remains a matter of common law.</p>\n<p><em>Attorney-General v Chapman</em> <a href=\"http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZSC/2011/110.html\" rel=\"noreferrer\">[2011] NZSC 110</a></p>\n</blockquote>\n<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<blockquote>\n<p>The immunity of superior court judges in Canada, including judges of the Quebec Superior Court, is inherited from English law.</p>\n<p>(<em>Morier and Boily v. Rivard</em>, <a href=\"https://canlii.ca/t/1ftx7#par85\" rel=\"noreferrer\">[1985] 2 SCR 716, at paragraph 85</a>)</p>\n</blockquote>\n<p>That judgment goes on to cite English cases dating back to 1607, and a doctrinal text (H. Brun and G. Tremblay, <em>Droit constitutionnel</em>) also agreeing that the immunity stems from common law (translation):</p>\n<blockquote>\n<p>This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged.</p>\n</blockquote>\n<p>Courts in Canada have also recognized that judicial immunity is now constitutionalized, through the unwritten constitutional principle of judicial independence. See e.g. <em>Taylor v. Canada (Attorney General)</em>, <a href=\"https://canlii.ca/t/4l93#par58\" rel=\"noreferrer\">[2000] 3 FC 298 (C.A.) at paragraphs 58-60</a>.</p>\n", "score": 8 } ]

[ "new-zealand", "judiciary", "judicial-immunity" ]

[ { "answer_id": 92439, "body": "<h2>Let's clarify the point: the material is most likely illegal <em>per se</em></h2>\n<p>In the laws of many jurisdictions, the definition of child pornography extends from depicting sexual acts with a minor to depicting sexual acts with an <strong>apparent</strong> minor.</p>\n<p>As an extreme example: in Australia, <a href=\"https://www.vice.com/en/article/xgz8md/japanese-hentai-is-now-banned-in-australia\" rel=\"nofollow noreferrer\"><em>drawn sexual comics with Anime aesthetics are banned wholesale</em></a>, and <a href=\"https://law.stackexchange.com/questions/1279/is-virtual-child-pornography-illegal?noredirect=1&amp;lq=1\">England and Wales similarly made photorealistic and even more abstract styles of such material illegal.</a> AI art would fall somewhere under those.</p>\n<p>In other countries, like the US or Japan, legality is based on the material not being <em>obscene</em>. Obscenity often is a somewhat subjective test, like in the US the standard for a time was &quot;I know it when I see it&quot; (Jacobellis v. Ohio, 378 U.S. 184 (1964)), but was refined into the <a href=\"https://caselaw.findlaw.com/court/us-supreme-court/413/15.html\" rel=\"nofollow noreferrer\">Miller Test</a> in 1973:</p>\n<blockquote>\n<ol>\n<li>Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.</li>\n<li>The basic guidelines for the trier of fact must be: (a) whether &quot;the average person, applying contemporary community standards&quot; would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.</li>\n<li>The test of &quot;utterly without redeeming social value&quot; articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.</li>\n<li>The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a &quot;national standard.&quot; Pp. 30-34.</li>\n</ol>\n</blockquote>\n<p>In a totally different definition, <a href=\"/questions/tagged/japan\" class=\"post-tag\" title=\"show questions tagged &#39;japan&#39;\" aria-label=\"show questions tagged &#39;japan&#39;\" rel=\"tag\" aria-labelledby=\"tag-japan-tooltip-container\">japan</a> has its <a href=\"https://www.icmec.org/wp-content/uploads/2017/08/Japan-National-Legislation.pdf\" rel=\"nofollow noreferrer\">Penal Code of Japan Section 175</a> reads (in translation) much more like a subjective test, which is often called out to demand conformity (and censor bars):</p>\n<blockquote>\n<p>Chapter XXII, Article 175. Distribution of Obscene Objects: A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possess the same\nfor the purpose of the sale.</p>\n</blockquote>\n<h2>Who is in possession of illegal material?</h2>\n<p>This depends:</p>\n<ul>\n<li>IF the AI was trained on illegal material, the makers of the AI had in their possession material of which possession is illegal.</li>\n<li>IF the hosting company stores the material generated by the user,\nand it is of the banned type once evaluated, then the company where the image is hosted might be in possession.\n<ul>\n<li>In the US, due to <a href=\"https://en.wikipedia.org/wiki/Section_230\" rel=\"nofollow noreferrer\">Section 230 (of Title 47)</a>, the hosting company however is blameless for user-generated and user-stored content. The User is fully to blame.</li>\n</ul>\n</li>\n<li>The User, by properly downloading the file actively gets into possession of illegal material, which would make them liable for that\n<ul>\n<li><a href=\"https://www.nealdavislaw.com/criminal-defense-guides/child-porn-viewing-posession.html\" rel=\"nofollow noreferrer\">Just having the file in the browser cache does not always suffice in the US</a> but courts might evaluate the evidence differently</li>\n</ul>\n</li>\n</ul>\n", "score": 5 } ]

[ "pornography", "artificial-intelligence", "child-porn" ]

[ { "answer_id": 27813, "body": "<p>This question really depends on the specific countries involved, as all law depends on jurisdiction. However, there are essentially two ways that breaking into foreign computer systems could be illegal: 1) Your own country has laws against hacking that include hacking into foreign computers\n<strong>or</strong> 2) The country you're breaking into has laws about hacking that are not limited to citizens.</p>\n\n<p>In the first case, your own country would find such \"hacking\" illegal; in the second, your target country would find such \"hacking\" illegal. If you violate the first, which is the less likely option, you could be traced, located and prosecuted by your own country. If you violate the second, which is the more likely option, the target country would target you for extradition and prosecution. Depending on the amount of political power your target country has, this could result in you being shipped off to another country to face their courts, without the protection of your own country.</p>\n\n<p>In other words, it could very well be illegal, though the specific sentence resulting from such a crime is far too specific to even attempt to address in the general case.</p>\n", "score": 4 } ]

[ "criminal-law", "hacking", "cybersquatting" ]

[ { "answer_id": 92440, "body": "<h2>There is no <a href=\"https://www.bankrate.com/finance/credit-cards/does-law-cap-credit-card-interest-rates/\" rel=\"noreferrer\">usury</a> on Credit Cards in the USA</h2>\n<p>Legally, usury is charging interest rates above the mandated maximum. Due to ongoing successful lobbying by card providers, there is no maximum on credit cards. Some protections around disclosure and transparency were passed in 2009, which is why you can so easily quote the figures.</p>\n<p>However, even in jurisdictions where there are caps, the rates you quote may not exceed them. For example, in Australia, the maximum rate is 48%.</p>\n", "score": 7 } ]

[ "united-states", "debt", "credit-card", "usury", "toyota" ]

[ { "answer_id": 91970, "body": "<blockquote>\n<p>If you do, can you build/run it without being bound by said license?</p>\n</blockquote>\n<p>No, you cannot. Because there is no way to &quot;build/run&quot; it without making a copy. You <em>copy</em> the sourcecode, before you can run your compiler. <em>That</em> is the copy you are making, not copying the file that results from this process.</p>\n<p>A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to <em>allow</em> things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is &quot;You cannot copy that. At all. Unless you have explicit permission&quot;. That argument would sound like &quot;I stole all 10, because the offer of buy-one-get-one-free was not legally binding&quot;. Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead.</p>\n<p>Now, there are many exceptions for &quot;personal use&quot;. You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it.</p>\n", "score": 4 }, { "answer_id": 92435, "body": "<p>You can do with the source code: whatever copyright law allows, and whatever a license by the copyright holder allows. Copyright law may allow you to download a copy of the source code if the copyright holder made it available voluntarily for everyone to download, that’s it.</p>\n<p>There are possible exceptions for personal use, which will be highly limited, beyond that if a license sets conditions then you either follow the conditions or you cannot copy the source code. And practically anything requires copying the source code.</p>\n", "score": 0 } ]

[ "united-states", "software" ]

[ { "answer_id": 91496, "body": "<p>A fundamental principle of copyright law is that protection is only afforded to the concrete expression, and not the abstract idea. Therefore, if you write a sort program, what is protected is &quot;that specific program&quot;, and not the general idea of a sort program. There are many kinds of sort algorithms: if you write a bubble sort program, you don't &quot;own&quot; all bubble sort programs, you only own the one that you wrote. If you sell your right to a particular bubble sort program, you don't thereby prevent yourself from writing another bubble sort program. But, technically, you <em>do</em> prevent yourself from copying that program, changing some variable names or maybe manually recoding a couple of lines, and re-licensing the code (assuming that you fully transferred copyright, or gave the customer exclusive rights to the code).</p>\n<p>The basic question that the courts will ask is &quot;did you copy that program&quot;, which they answer by looking at the similarity between the two programs. All bubble sorts have a necessary similarity. To prove infringement, the plaintiff would (ultimately) have to prove that the similarity had to have come from copying rather than independent coincidental re-creation. Functional considerations and general programmer practice\nwould tend to weigh against an allegation of infringement in certain cases, where &quot;counter&quot; is a common name for a counter variable, and bubble sort is a well known algorithm with limited practical differences in lines of code.</p>\n<p>The hard part is establishing that it would be natural for such similarities to exist even when independently coded by a single person. It may be common practice to take a program that you've sold and tweak it in some fashion, but that is copyright infringement, whereas &quot;applying the lessons that you learned in writing X to a new program&quot; is not infringement, it is using the same ideas, and the ideas are not what is protected.</p>\n", "score": 20 }, { "answer_id": 91492, "body": "<p>If the developer sold exclusive rights to their code, their customer has grounds to sue.</p>\n<p>If the developer licensed their code non-exclusively, there isn't grounds.</p>\n<p>Normally, a contract developer will sell the rights, while a product-based company will license them. Of course it's common in practice to do the former, but then reuse parts of the code - there are both legal and non-legal ways to make this happen.</p>\n", "score": 16 } ]

[ "copyright", "software", "business", "copyright-notice", "copyright-transfer" ]

[ { "answer_id": 92220, "body": "<h2>Because breaking the law is not breach of contract</h2>\n<p>(Necessarily).</p>\n<p>Were you to use the model to 3D-print a gun and rob banks with it, without this clause, you have not broken the contract. That would mean that the provider could neither sue you for any damages the use of their model in your crime spree might have caused them, nor can they legally terminate the licence with you.</p>\n", "score": 59 }, { "answer_id": 92270, "body": "<blockquote>\n<p>I don't see the point of that clause</p>\n</blockquote>\n<p>The point is to add a legal disclaimer in case someone uses the open source model for nefarious purposes. It's there for the same reason <code>This software is provided as-is</code> is included in all software licenses - it's a legal statement designed to avoid legal liability from the use of your program by others.</p>\n<p>@DaleM mentions &quot;breach of contract&quot; as a possible reason but it's extremely unlikely anyone, anywhere will be able to recover damages as a result of misusing one's open source model. The real reason is to protect the author of the model, not to sue anyone for damages.</p>\n", "score": 10 }, { "answer_id": 92271, "body": "<p>Perhaps, this would protect the company from being sued. Take a flamethrower, for example. If you burn someone's house down, that person might sue you and the flamethrower's manufacturer.</p>\n<p>They could say to the manufacturer this framethrower is dangerous! How come you make such a dangerous product? You give us money, also.</p>\n<p>The manufacturer can just say, hey we had a contract with him saying he wouldn't do crime with it. Not did we warn him not to burn your house down, we even made him sign a contract saying, he wouldn't do it. What do you want from us? It's just him.</p>\n", "score": 5 }, { "answer_id": 92300, "body": "<p>In some jurisdictions (<a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1962\" rel=\"nofollow noreferrer\">Germany, for example</a>) it can be illegal to create software that is intended for computer sabotage and other illegal purposes. Writing into the license agreement that using the software for illegal purposes is specifically not allowed could be in preparation of a legal defense against an accusation that the software was provided for the purpose of doing something illegal with it.</p>\n", "score": 4 }, { "answer_id": 92296, "body": "<p>I think of two main reasons. The first one is to avoid liability for third party users breaking the law or causing damages using the licensed product. The second one is that the author of the product has moral rights over it and can prohibit anything he wants about its use. Of course it's not always easy to enforce that, but it's there at least.</p>\n", "score": 1 } ]

[ "software", "licensing", "open-source-software" ]

[ { "answer_id": 92267, "body": "<p>The educational/teaching purposes do not apply to any copyrighted work that you chose to include in the educative material that you might produce.</p>\n<p>The educational/teaching purposes means education <strong>refering to</strong> or <strong>related to</strong> the work being used.</p>\n<p>If your presentation is about the musical styles of the 70s, you can use a 70s song to show how it matches those styles, its impact, relevance... But you cannot use the same song as soundtrack in a presentation about how to properly fill the X-520 form.</p>\n<p>It also usually requires some depth. So, your presentation being just &quot;These are some songs from the 70s&quot; and playing a few hours would not cut it, even if it serves for some in your public to listen (learn) new songs.</p>\n", "score": 15 } ]

[ "copyright", "fair-use", "music" ]

[ { "answer_id": 90789, "body": "<p>No: &quot;meeting of the minds&quot; (also known as <em>consensus ad idem</em>) is not about what the parties actually subjectively understood or wanted.</p>\n<p>For contract formation, <em>consensus ad idem</em> only requires that it appears to an objective reasonable person that the two parties were assenting to the terms of the agreement. See generally, Westlaw Canada, &quot;Contract: I.2: <a href=\"https://www.westlawcanada.com/academic/ced/contracts/\" rel=\"noreferrer\"><em>Consensus Ad Idem</em></a>&quot;; see also Cornell Law School, Legal Information Institute, &quot;<a href=\"https://www.law.cornell.edu/wex/meeting_of_the_minds\" rel=\"noreferrer\">Meeting of the Minds</a>.&quot;</p>\n<p>&quot;[I]n contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties (<em>Sattva Capital Corp. v. Creston Moly Corp.</em>, 2014 SCC 53 at <a href=\"https://canlii.ca/t/g88q1#par49\" rel=\"noreferrer\">para. 49</a>).</p>\n<p>&quot;Evidence of one party’s subjective intention has no independent place in this determination&quot; (<em>Eli Lilly &amp; Co. v. Novopharm Ltd.</em>, <a href=\"https://canlii.ca/t/1fqqz\" rel=\"noreferrer\">[1998] 2 S.C.R. 129</a> at para. 54).</p>\n<blockquote>\n<p>It is important to note that <strong><em>consensus ad idem</em> is an objective, not a subjective test</strong>. As noted by the Alberta Court of Appeal in <em>Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Company Limited</em>, 2003 ABCA 221, at para. 9, the test is whether “it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.”</p>\n<p>(<em>Silver Eagle Management Inc. v. Onoway (Town)</em>, 2011 ABQB 139 at <a href=\"https://canlii.ca/t/fkpt0#par60\" rel=\"noreferrer\">para. 60</a>).</p>\n</blockquote>\n<blockquote>\n<p>Though the courts now have clearly adopted an objective approach to the analysis of contract, they occasionally use language that suggests that what is subjectively in the minds of the parties is important. <strong>It is sometimes said that there has to be a <em>consensus ad idem</em> (in Latin, literally “agreement to the same thing”) or that the parties “minds have to be at one”. Statements like this are misleading. No legal system can require that there be an actual “meeting of the minds”</strong>, for that would provide too much of an incentive to those who would like to contract with their “fingers crossed”. The requirement that a subjective agreement exist would permit one party to stay with a contract only so long as it suited its convenience; when it did not, the party could claim that it had never really agreed to the other’s terms.</p>\n<p>(<em>MacNeil v. Dana Canada Corporation</em>, <a href=\"https://canlii.ca/t/1zjnq#par13\" rel=\"noreferrer\">2008 CanLII 35689 (ON SC), at para 13</a>, quoting Swan, Reiter &amp; Bala, <em>Contracts: Cases, Notes &amp; Materials</em>).</p>\n</blockquote>\n", "score": 6 } ]

[ "contract-law", "common-law" ]

[ { "answer_id": 92123, "body": "<h3>If I'm the Attorney General, Bob goes on trial.</h3>\n<p>Let's look at the relevant text from the Logan Act.</p>\n<blockquote>\n<p>Any citizen of the United States, wherever he may be, who, without\nauthority of the United States, directly or indirectly commences or\ncarries on any correspondence or intercourse with any foreign\ngovernment or any officer or agent thereof, with intent to influence\nthe measures or conduct of any foreign government or of any officer or\nagent thereof, in relation to any disputes or controversies with the\nUnited States, or to defeat the measures of the United States, shall\nbe fined under this title or imprisoned not more than three years, or\nboth.</p>\n</blockquote>\n<p>I see no mention here of current or future administrations, only the influencing of foreign nations. The semantics of current versus future administrations might be persuasive at trial, or might not.</p>\n<p>That said, just violating the Logan act isn't enough to get one charged with it. Kissinger certainly wasn't charged.</p>\n", "score": 1 } ]

[ "united-states" ]

[ { "answer_id": 92401, "body": "<p>One of the principles of statutory interpretation in common law countries is that statutes are not deemed to displace common law rules unless this intent is clearly indicated by the statute. This is often phrased in the form: &quot;a statute in derogation of the common law is to be strictly construed.&quot;</p>\n<p>This preserves an inferior and older law of general application, in favor of a newer, superior in authority, and more specific law.</p>\n<p>For example, a law regarding federal government employee life insurance policy beneficiaries does not expressly provide that the designation of someone as a beneficiary is invalidated in the event that the beneficiary murders the person insured by the life insurance policy.</p>\n<p>Notwithstanding the language in the statute that says that a designated beneficiary of the life insurance policy is entitled to the benefits upon the insured's death, <a href=\"https://casetext.com/case/metropolitan-life-ins-co-v-kelley\" rel=\"nofollow noreferrer\">the courts have held</a> that the common law rule that a beneficiary of a life insurance policy who kills the insured is not entitled to the benefits of the policy overrides the express statutory statement that the designated beneficiary of a federal government employee life insurance policy is entitled to the benefits when the insured dies.</p>\n<p>This result was reached based upon the rule that the common law is not displaced by a statute unless an intent to do so is clearly indicated by the statute.</p>\n<p>There may be other exceptions to the rules of <em>lex specialis</em>, <em>lex superior</em>, and <em>lex posterior</em>, but this one is the first that came to mind.</p>\n<p>Some states, such as Utah, however, have overruled this interpretative provision. Utah Code § 68-3-2(1) states that:</p>\n<blockquote>\n<p>The rule of the common law that a statute in derogation of the common\nlaw is to be strictly construed does not apply to the Utah Code.</p>\n</blockquote>\n", "score": 3 }, { "answer_id": 92417, "body": "<p>The principles of lex specialis, lex superior, and lex posterior are some of the most well-known maxims used to resolve conflicts between laws. They provide a framework for determining which law applies when two laws seem to govern the same situation.</p>\n<p>The situation you're describing — a past general law overriding a present special law without deriving from a superior legal instrument like a constitution — isn't traditionally covered by a single legal maxim. This is largely because lex specialis is designed specifically to prevent this situation: the idea is that a law addressing a specific situation should override a more general one.</p>\n<p>However, legal systems are complex and have many principles and doctrines that could potentially apply, depending on the specifics of the situation. A couple of potential examples could be:</p>\n<p>The doctrine of implied repeal: This doctrine suggests that where a later statute (even if general in nature) is inconsistent with an earlier, more specific statute, the later statute to the extent of the inconsistency repeals the earlier one.\nThe principle of in pari materia: When two statutes deal with the same subject matter, they should be interpreted harmoniously. So, a court might find a way to read the two laws so they don't conflict, or it might interpret the more specific law narrowly so that the general law applies to more situations.</p>\n", "score": 1 } ]

[ "legal-concepts" ]

[ { "answer_id": 92317, "body": "<h2>You cannot</h2>\n<p>In a conflict between written and oral terms of a contract, the written terms prevail. In any event, by you utterance you have not accepted the contract; you have made a counter-offer which the other party has not accepted and have then gone on to accept their original offer.</p>\n<p>You would need the written agreement of the other party that they accept your terms and that they understand that clicking the “I accept” is not an acceptance of their terms but merely a means of completing the technical procedure.</p>\n", "score": 5 } ]

[ "united-states", "contract-law", "consent", "adhesion-contracts" ]

[ { "answer_id": 92357, "body": "<h2>No</h2>\n<p>You can outsource if you don't disclose Confidential Information (as defined in the agreement), or if you have the principal's permission to disclose it to the third-party contractor. The clause only applies to confidential information - a subset of all information.</p>\n<blockquote>\n<p>I know that independent contractors should have the freedom to complete the work in whatever way they want</p>\n</blockquote>\n<p>Not at all. George Clooney, the actor, is an independent contractor - he can't outsource.</p>\n<p>Of course, this is an example of a personal services contract but, more generally, while the starting position in contracting is that either party may delegate their obligations (although they remain responsible for them) the parties are free to structure their contract however they like. If they want to prohibit outsourcing, they can. If they want to specify that certain personnel must be used (or not used), they can.</p>\n", "score": 7 } ]

[ "contract-law", "confidentiality", "contractor", "freelance" ]

[ { "answer_id": 92414, "body": "<p>The sections you're asking about (as well as related 60(6E): this is an important limiting clause that you may have overlooked) were added by <a href=\"https://www.legislation.gov.uk/uksi/2014/1997/contents/made\" rel=\"nofollow noreferrer\">The Legislative Reform (Patents) Order 2014 (S.I. 2014/1997)</a>. Its <a href=\"https://www.legislation.gov.uk/uksi/2014/1997/note/made\" rel=\"nofollow noreferrer\">explanatory note</a> describes:</p>\n<blockquote>\n<p>Article 2 amends section 60 to ensure that the exception to patent infringement in subsection (5)(b) applies to anything done in or for the purposes of a medicinal product assessment</p>\n</blockquote>\n<blockquote>\n<p>New subsection (6D) provides that anything done in or for the purposes of a medicinal product assessment is to be regarded as done for experimental purposes relating to the subject-matter of the invention.</p>\n</blockquote>\n<blockquote>\n<p>New subsection (6E) defines what is meant by “medicinal product assessment”. A medicinal product assessment includes acts done in the United Kingdom or the Isle of Man in testing or in a course of testing or other activity undertaken with a view to providing data <strong>for a specified purpose</strong>.</p>\n</blockquote>\n<p>Those specified purposes are (paraphrasing): obtaining an authorisation to sell or supply, complying with regulatory requirements, or enabling a government or public authority to carry out an assessment of suitability.</p>\n<p>Essentially, this allows competitors to do comparison/non-inferiority trials in order to obtain market authorisation for medicinal products without the risk of infringment. See <a href=\"https://gowlingwlg.com/en/insights-resources/articles/2014/patent-law-proposals-to-bring-clinical-trials-back/\" rel=\"nofollow noreferrer\">this explainer</a> by Gowling WLG. <a href=\"https://cms.law/en/int/expert-guides/cms-expert-guide-on-bolar-provisions/united-kingdom\" rel=\"nofollow noreferrer\">CMS describes this</a> as covering: &quot;any testing or other activity undertaken <strong>with a view to providing data in relation to marketing authorisations</strong> in the UK or elsewhere.&quot;</p>\n", "score": 1 } ]

[ "england-and-wales", "patents", "medical" ]