Law School

Reliance damages is the measure of compensation given to a person who suffered an economic harm for acting in reliance on a party who failed to fulfill their obligation. If the injured party could go back in time, they should be indifferent to entering into the contract that would be breached and receiving the reliance damages as opposed to not entering into any contract with the breaching party. The injured party should be put in a substantially similar situation position as they would have been had the contract not been entered into. This is different from expectation damages, where the injured party should be indifferent between the fulfillment of the contract and never having entered into the contract. Scope. Reliance damages are valued by a party's reliance interest for the reasonably foreseeable amount. They put the injured party in the same financial position as if the contract had never been formed. Reliance interest is one of the three prongs of interest discussed by legal experts Lou Fuller and William Perdue in their 1936 article, "The Reliance Interest in Contract Damages." The other two interests are expectation interest and restitution interest. Application. Under contract law, in a bilateral contract two or more parties owe obligations to each other. Each party acts in reliance that the other party will fulfill their respective obligation. If one party fails to fulfill their obligation, then the other party may suffer economic harm. Reliance damages compensate the harmed party for the amount of damages they suffered for acting in reliance on the other party's contractual obligations. They are most often rewarded when the aggrieved party's damages are not capable of accurate estimation and ordering Specific Performance would be inappropriate. Specific performance should never be associated with reliance damages, as specific performance is almost never purely financial, and reliance damages are generally a purely financial remedy. Reliance damages may be differentiated from restitution damages in the context of partial performance. Restitution damages may be invoked when the injured party confers a benefit upon a breaching party, and the breaching party does not fulfill their obligations with the benefit provided by the injured party. If reliance damages are to be invoked, the injured party has generally not conveyed a particular benefit to the breaching party; rather the injured party put themselves in a vulnerable situation in reliance on an action from a breaching party, and that breaching party allowed the injured party to suffer harm as a result of the breaching party's action or inaction. However, it must be reasonably foreseeable to the breaching party that the injured party would be harmed by the breaching party's behavior. If the injured party takes unreasonable action that irrationally relies on a behavior from the breaching party, a court may decide that an injured party may not warrant reliance damages from the breaching party. In US law, reliance damages are the type of damages awarded in promissory estoppel claims, although they can also be awarded in traditional contract breaches. This is appropriate because even if there is no bargain principle in the agreement, one party has relied on a promise and thus is damaged to the extent of their reliance. These damages must be proven with reasonable certainty. It is not enough that one party simply guess as to how much they are actually damaged. In a losing contract, reliance damages will be reduced because the aggrieved party cannot be put in a better position had the contract been performed. Here, the losses from the contract will be subtracted from the reliance damages.

In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims. Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true, the defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability. The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase. Since a defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof. For example, a defendant who is charged with assault may claim provocation, but they would need to prove that the plaintiff had provoked the defendant. Common law defenses. In common law, a defendant may raise any of the numerous defenses to limit or avoid liability. These include: Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity. (In law, this is not a defense as such but an argument that the case should not be heard at all.) Failure to state a cause of action or other insufficiencies of pleading. Any of the affirmative defenses. Defenses conferred by statute – such as a statute of limitations or the statute of frauds. Ex turpi causa non oritur actio – the action against the defendant arises from an illegality. Volenti non fit injuria – consent by the victim or plaintiff. In pari delicto – both sides equally at fault. Act of God is an unforseable natural phenomenon which involves no human agency due directly to natural causes which cannot be foreseen. Necessity harm done to prevent a greater evil is not actionable even though the harm was caused intentionally. Mistake whether of fact or of law is no defense to action. The law permits use of reasonable force to protect one's person or property. If force is used for self-defense they will not be liable for harm. Unclean hands. In addition to defenses against prosecution and liability, a defendant may also raise a defense of justification – such as self-defense and defense of others or defense of property. In English law, one could raise the argument of a contramandatum, which was an argument that the plaintiff had no cause for complaint.

Insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made in the will may fail in whole or in part. Only the portion of the will caused by the insane delusion fails, including potentially the entire will. Will contests often involve claims that the testator was suffering from an insane delusion. An insane delusion is distinct from testamentary capacity. A testator might be suffering from an insane delusion but otherwise possesses the requisite capacity to make a will. Similarly, an insane delusion is distinct from a mere mistake. If suffering from an insane delusion, a testator is not subject to change his or her mind regarding the delusion if presented with contrary evidence, whereas a mistake is capable of being corrected if the testator is told the truth. Additionally, while an insane delusion may cause portions of a will to fail, most courts will not reform or invalidate a will because of a mistake unless it was the result of fraud. Origin. The insane delusion concept was created in the 1826 British case Dew v Clark. In that case, a father believed that his daughter was "the devil incarnate" and disinherited her in his will of 1818. After her father's death, evidence presented by the daughter showed that she was well known for her good disposition and that her father had falsely told others that he lavished his daughter with praise and wealth. The probate court found that the father's mindset when he made the 1818 will was normal in all respects except toward his daughter. The court found that his thoughts about her, "did and could only proceed from, and be founded in, insanity," a "partial insanity" that only extended to his thoughts about his daughter and caused him to disinherit her. The court said that this delusion caused the will to fail. Examples. In the 1854 case Addington v Wilson, the Indiana Supreme Court held that a testator who disinherited his daughters because he believed them to be witches was not for that reason alone so insane as to deem him incapable of making a valid will. The court justified its decision by pointing to distinguished jurists and religious figures who affirmed the possibility of witchcraft; if these people's beliefs did not render them insane, neither did the testator's. In In re Robertson's Estate (1948), the Supreme Court of Oklahoma held that a testator who declared that he had "no children" and "no deceased children" in his will, when he actually had two living children, was suffering from an insane delusion, as the testator had "no rational basis whatsoever" to declare that he had no children.

Cohabitation is an arrangement where people who are not married, usually couples, live together. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increasingly common in Western countries since the late 20th century, being led by changing social views, especially regarding marriage, gender roles and religion. More broadly, the term cohabitation can mean any number of people living together. To "cohabit", in a broad sense, means to "coexist". The origin of the term comes from the mid 16th century, from the Latin cohabitare, from co- 'together' + habitare 'dwell'. Social changes leading to increase. In Europe, the Scandinavian countries have been the first to start this leading trend, although many countries have since followed. Mediterranean Europe has traditionally been very conservative, with religion playing a strong role. Until the mid-1990s, cohabitation levels remained low in this region, but have since increased. During the past decades, in Western countries, there has been an increase in unmarried couples cohabiting. Historically, many Western countries have been influenced by Christian doctrines on sex, which opposes unmarried cohabitation. As social norms have changed, such beliefs have become less widely held by the population and some Christian denominations today view cohabitation as a precursor to marriage. Pope Francis has married a cohabiting couple who had children, while former Archbishop of Canterbury Rowan Williams and the Archbishop of York John Sentamu have expressed tolerance of cohabitation. In recent decades high rates of participation of women in the workforce, and the widespread availability of highly effective long acting reversible contraceptives has led to women making individual choices over their reproduction with decreased reliance on male partners for financial stability. All these changes favored living arrangement alternatives to marriage. In Central and Eastern Europe, during the late 1980s and early 1990s, there were major political changes, such as the fall of Communist governments. These societies entered a new era of increased social freedom, less rigid rules, and less authoritarian governments. They interacted with Western Europe and some became members of the European Union. As a result, the patterns of family life have started to change: marriage rates have declined, and marriage was postponed to a later age. Cohabitation and births to unmarried mothers increased, and in some countries the increase was very quick. The deinstitutionalization of marriage refers to the weakening of the social and legal norms that regulate peoples' behavior in regard to marriage. The rise in cohabitation is part of other major social changes such as: higher divorce rate, older age at first marriage and childbearing, and more births outside marriage. Factors such as secularization, increased participation of women in the labor force, changing in the meaning of marriage, risk reduction, individualism, and changing views on sexuality have been cited as contributing to these social changes. There has also been a change in modern sexual ethics, with a focus on consent, rather than marital status (for example decriminalization of adultery and fornication; criminalization of marital rape), reflecting new concepts about the role and purpose of sexual interaction, and new conceptualizations of female sexuality and of self-determination. There have been objections against the legal and social regulation of female sexuality; with such regulations being often seen as violations of women's rights.

Domain names. The advent of the domain name system has led to attempts by trademark holders to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue. As with dilution protection, enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or service. This conflict is easily resolved when the domain name owner actually uses the domain to compete with the trademark owner. Cybersquatting, however, does not involve competition. Instead, an unlicensed user registers a domain name identical to a trademark and offers to sell the domain to the trademark owner. Typosquatters—those registering common misspellings of trademarks as domain names—have also been targeted successfully in trademark infringement suits. "Gripe sites", on the other hand, tend to be protected as free speech, and are therefore more difficult to attack as trademark infringement. This clash of the new technology with pre-existing trademark rights resulted in several high-profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trademark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead. Initial interest confusion refers to customer confusion that creates an initial interest in a competitor's "product" (in the online context, another party's website). Even though initial interest confusion is dispelled by the time any actual sales occur, it allows a trademark infringer to capitalize on the goodwill associated with the original mark. Several cases have wrestled with the concept of initial interest confusion. In Brookfield Communications, Incorporated v West Coast Entertainment Corporation the court found initial interest confusion could occur when a competitor's trademarked terms were used in the HTML metatags of a website, resulting in that site appearing in the search results when a user searches on the trademarked term. In Playboy Netscape, the court found initial interest confusion when users typed in Playboy's trademarks into a search engine, resulting in the display of search results alongside unlabeled banner ads, triggered by keywords that included Playboy's marks, that would take users to Playboy's competitors. Though users might ultimately realize upon clicking on the banner ads that they were not Playboy-affiliated, the court found that the competitor advertisers could have gained customers by appropriating Playboy's goodwill since users may be perfectly happy to browse the competitor's site instead of returning to the search results to find the Playboy sites. In Lamparello v Falwell, however, the court clarified that a finding of initial interest confusion is contingent on financial profit from said confusion, such that, if a domain name confusingly similar to a registered trademark is used for a non-trademark related website, the site owner will not be found to have infringed where they do not seek to capitalize on the mark's goodwill for their own commercial enterprises.

Incidental damages. Incidental damages refers to the type of legal damages that are reasonably associated with, or related to, actual damages. In American commercial law, incidental damages are a seller's commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer's breach of contract, (UCC Sec. 2-710) or a buyer's expenses reasonably incurred, for example, searching for and obtaining substitute goods. (UCC Sec. 2-715(1)). Consequential damages. Consequential damages, otherwise known as special damages, are damages that can be proven to have occurred because of the failure of one party to meet a contractual obligation, a breach of contract. From a legal standpoint, an enforceable contract is present when it is: expressed by a valid offer and acceptance, has adequate consideration, mutual assent, capacity, and legality. Consequential damages go beyond the contract itself and into the actions that arise from the failure to fulfill. The type of claim giving rise to the damages, such as whether it is a breach of contract action or tort claim, can affect the rules or calculations associated with a given type of damages. For example, consequential damages are a potential type of expectation damages that arise in contract law. When a contract is breached, the recognized remedy for an owner is recovery of damages that result directly from the breach (also known as "compensatory damages"). Damages may include the cost to repair or complete the work in accordance with the contract documents, or the value of lost or damaged work. In addition to the compensatory damage, an owner can also seek for consequential damages (sometimes referred to as "indirect" or "special" damages), which include loss of product and loss of profit or revenue. This may be recovered if it is determined such damages were reasonably foreseeable or "within the contemplation of the parties" at the time of contract formation. This is a factual determination that could lead to the contractor's liability for an enormous loss. For example, the cost to complete unfinished work on time may pale in comparison to the loss of operating revenue an owner might claim as a result of late completion. In order to seek consequential damages, a party who has suffered physical injury, property damage, or financial loss needs to perform a duty to mitigate damages, which means that they have an obligation to reduce or minimize the effect and any losses resulting from the injury. The degree of proof required for the consequential damages is also higher than for the direct damages. Consequential damages must also be pled with greater specificity. The plaintiff has it on their burden to prove that the damages occurred are not only the proximate consequence of the breach, but also that they were "reasonably foreseeable" or within the "contemplation of the parties" when the parties agreed to the terms of the contract. The logic for proving foreseeability is that a party who can foresee the consequences of a breach of a contract can modify the contract price accordingly to compensate for the risk that is assumed. Further, in order to recover damages caused by a breach, the non-breaching party must act reasonably and timely to mitigate its damages. The Supreme Court of the United States has held in United States v 50 Acres of Land that consequential damages are not available in the U.S. Federal takings.

Economics. Economics can be both a tool of the internal and external subversive. For the external subversive, simply cutting off credit can cause severe economic problems for a country. An example of this is the United States' relations with Chile in the early 1970s. In an attempt to get Salvador Allende removed from office, the United States tried to weaken the Chilean economy. Chile received little foreign investments and the loss of credit prevented Chile from purchasing vital imports. Economic pressure of this kind prevents an economy from functioning and reduces a country's standard of living. If the reduction is too great, the people may become willing to support a change in the government's leadership. The main objective of economic pressures is to make it difficult for the country to fulfill its basic obligations to the citizenry either by cutting off trade or by depriving it of resources. The internal subversive can also use economics to put pressure on the government through use of the strike. An example of this is the Chilean Truckers’ Strike during the 1970s. The strike prevented the transport of food staples and forced nearly 50% of the national economy to cease production. Activities of these kinds create human, economic, and political problems that, if not addressed, can challenge the competency of the government. Agitation and civil unrest. As defined by Laurence Beilenson, agitation is "subversive propaganda by action such as mass demonstrations or the political strike, that is, a strike not intended to benefit the union or workers in the ordinary sense, but intended instead against the government." Furthermore, propaganda and agitation, even when they are legal forms of freedom of speech, press, and assembly can still be classified as subversive activity. These tools further demonstrate the need to determine intent of those taking action to identify subversive activities. Civil unrest creates many of the problems that an insurgency campaign does. First of all it is an affront to government authority, and if the government is unable to quell the unrest it leads to an erosion of state power. This loss of power stems from the people's lack of trust in the government to maintain law and order. In turn, the people begin to question whether or not new leadership is needed. Discrediting, disarming, and demoralizing the government is the goal of these activities and the cause of the government's loss of power. Civil unrest depletes resources as the government is forced to spend more money on additional police. Additionally, civil unrest may be used to provoke a response from the government. In the 1940s, during strikes against the Marshall Plan, communists in France would "deliberately provoke the police and gendarmerie into acts of repressive violence in order to exploit the resulting 'martyrs to the cause' for propaganda purposes." These martyrs and subsequent propaganda can be useful in turning political and social groups against each other. The less violent forms of unrest, "such as worker absenteeism, passive resistance, boycotts, and deliberate attempts to cripple government agencies by 'overloading the system' with false reports, can have powerfully disruptive effects, both economically and politically."

In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (for example, a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensation) or criminal law (for example, a fraud perpetrator may be prosecuted and imprisoned by governmental authorities), or it may cause no loss of money, property, or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, for example by obtaining a passport, travel document, or driver's license, or mortgage fraud, where the perpetrator may attempt to qualify for a mortgage by way of false statements. Internal fraud, also known as "insider fraud", is fraud committed or attempted by someone within an organization such as an employee. A hoax is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim. As a civil wrong. In common law jurisdictions, as a civil wrong, fraud is a tort. While the precise definitions and requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort generally are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact does rely, to the harm of the victim. Proving fraud in a court of law is often said to be difficult as the intention to defraud is the key element in question. As such, proving fraud comes with a "greater evidentiary burden than other civil claims". This difficulty is exacerbated by the fact that some jurisdictions require the victim to prove fraud by clear and convincing evidence. The remedies for fraud may include rescission (for example, reversal) of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, punitive damages to punish or deter the misconduct, and possibly others. In cases of a fraudulently induced contract, fraud may serve as a defense in a civil action for breach of contract or specific performance of contract. Similarly, fraud may serve as a basis for a court to invoke its equitable jurisdiction. As a criminal offense. In common law jurisdictions, as a criminal offense, fraud takes many different forms, some general (for example, theft by false pretense) and some specific to particular categories of victims or misconduct (for example, bank fraud, insurance fraud, forgery). The elements of fraud as a crime similarly vary. The requisite elements of perhaps the most general form of criminal fraud, theft by false pretense, are the intentional deception of a victim by false representation or pretense with the intent of persuading the victim to part with property and with the victim parting with property in reliance on the representation or pretense and with the perpetrator intending to keep the property from the victim.

The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both (religious marriages must often be licensed and recognized by the state, and conversely civil marriages, while not sanctioned under religious law, are nevertheless respected). Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for the sake of satisfying a religious requirement. Americas and Europeb. In the Americas and Europe, in the 21st century, legally recognized marriages are formally presumed to be monogamous (although some pockets of society accept polygamy socially, if not legally, and some couples choose to enter into open marriages). In these countries, divorce is relatively simple and socially accepted. In the West, the prevailing view toward marriage today is that it is based on a legal covenant recognizing emotional attachment between the partners and entered into voluntarily. In the West, marriage has evolved from a life-time covenant that can only be broken by fault or death to a contract that can be broken by either party at will. Other shifts in Western marriage since World War I include: There emerged a preference for maternal custody of children after divorce, as custody was more often settled based on the best interests of the child, rather than strictly awarding custody to the parent of greater financial means. Both spouses have a formal duty of spousal support in the event of divorce (no longer just the husband). Out of wedlock children have the same rights of support as legitimate children. In most countries, rape within marriage is illegal and can be punished. Spouses may no longer physically abuse their partners and women retain their legal rights upon marriage. In some jurisdictions, property acquired since marriage is not owned by the title-holder. This property is considered marital and to be divided among the spouses by community property law or equitable distribution via the courts. Marriages are more likely to be a product of mutual love, rather than economic necessity or a formal arrangement among families. Remaining single by choice is increasingly viewed as socially acceptable and there is less pressure on young couples to marry. Marriage is no longer obligatory. Interracial marriage is no longer forbidden. Same-race marriage was uniquely illegal in Paraguay in its early history. Same-sex marriage and civil unions are legal in some countries. Asia and Africa. Key facts concerning the marriage law in Africa and Asia: Marital rape is legal in most parts Africa and Asia alike. Child marriage is legal in most parts of Africa and very few parts of Asia alike. Arranged marriage is prevalent in many parts of Africa and Asia alike, especially in rural regions. Same-sex marriage is illegal in most parts of Africa and Asia alike, with the exception of South Africa, Taiwan and some dependent territories. Polygamy is legal in many parts of Africa and Asia, but tends to be illegal in most Communist countries and legal in most Muslim countries. Divorce is legal in all parts of Africa and Asia (except in the Philippines), but wives seeking divorce have fewer legal rights than husbands in Muslim countries than in Communist countries. Dowries are a traditional aspect of marriage customs in most rural regions of Africa and Asia alike. Some societies permit polygamy, in which a man could have multiple wives; even in such societies however, most men have only one. In such societies, having multiple wives is generally considered a sign of wealth and power. The status of multiple wives has varied from one society to another.

The extent to which a trademark owner may prevent unauthorized use of trademarks that are the same as or similar to its trademark depends on various factors such as whether its trademark is registered, the similarity of the trademarks involved, the similarity of the products or services involved, and whether the owner's trademark is well known or, under U.S. law relating to trademark dilution, famous. If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark. If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorized use of a registered trademark need not be intentional for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive. For trademarks that are considered to be well known, infringing use may occur where the use occurs about products or services which are not the same as or similar to the products or services about which the owner's mark is registered. A growing area of law relating to the enforcement of trademark rights is secondary liability, which allows for the imputation of liability to one who has not acted directly to infringe a trademark but whose legal responsibility may arise under the doctrines of either contributory or vicarious liability. Limits and defenses to claims of infringement. Trademarks are subject to various defenses, such as abandonment, limitations on geographic scope, and fair use. In the United States, the fair use defense protects many of the interests in free expression related to those protected by the First Amendment. Fair use may be asserted on two grounds, either that the alleged infringer is using the mark to describe accurately an aspect of its products, or that the alleged infringer is using the mark to identify the mark owner. One of the most visible proofs that trademarks provide a limited right in the U.S. comes from the comparative advertising that is seen throughout U.S. media. An example of the first type is that although Maytag owns the trademark "Whisper Quiet" for its dishwashers, makers of other products may describe their goods as being "whisper quiet" so long as these products do not fall under the same category of goods the trademark is protected under. An example of the second type is that Audi can run advertisements saying that a trade publication has rated an Audi model higher than a BMW model since they are only using "BMW" to identify the competitor. In a related sense, an auto mechanic can truthfully advertise that he services Volkswagens, and a former Playboy Playmate of the Year can identify herself as such on her website. Wrongful or groundless threats of infringement. Various jurisdictions have laws that are designed to prevent trademark owners from making wrongful threats of a trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies. Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action. In this situation, the party receiving such a threat may seek from the Court a declaratory judgment; also known as a declaratory ruling.