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The flashing red light is treated like a stop sign
| 2 |
https://law.stackexchange.com/questions/90561/the-flashing-red-light-is-treated-like-a-stop-sign
|
CC BY-SA 4.0
|
<p>Does the flashing red light eventually turn into a steady red light before it changes to green? If so, does it always happen this way? Thank you!</p>
<p>"<a href="https://www.alberta.ca/traffic-control-signals.aspx#:%7E:text=Drivers%20facing%20a%20flashing%20red,treated%20like%20a%20stop%20sign." rel="nofollow noreferrer">Drivers facing a flashing red traffic control light must stop before the stop line or crosswalk. If there is no stop line or crosswalk, drivers must stop before the intersection. Drivers should proceed only when it is safe and after yielding the right-of way. The flashing red light is treated like a stop sign.</a>"</p>
| 90,561 |
[
{
"answer_id": 90563,
"body": "<blockquote>\n<p>Does the flashing red light eventually turn into a steady red light\nbefore it changes to green?</p>\n</blockquote>\n<p>Not really.</p>\n<p><strong>Fail Mode For Regular Stoplights</strong></p>\n<p>A flashing red light is usually a default mode of a traffic light system when the control system is broken, or the power grid is down. In these cases, it returns to its usual red-yellow-green mode when the system is back up and running.</p>\n<p><a href=\"https://i.stack.imgur.com/CJ0GK.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/CJ0GK.png\" alt=\"enter image description here\" /></a></p>\n<p><strong>Visibility Enhancing Red Only Flashing Red Lights</strong></p>\n<p>But, sometimes a permanently flashing red light with no other colors is deployed in addition to, or instead of, a stop sign, at intersections where stop sign visibility has been a problem. In these cases there is never a solid red light, or a light of any other color. It looks like this:</p>\n<p><a href=\"https://i.stack.imgur.com/rS0kz.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/rS0kz.png\" alt=\"enter image description here\" /></a></p>\n<p>or like this:</p>\n<p><a href=\"https://i.stack.imgur.com/mrTXo.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/mrTXo.png\" alt=\"enter image description here\" /></a></p>\n<p>(Obviously, none of these still images actually shows the flashing in action, you have to use your imagination.)</p>\n",
"score": 3
}
] |
[
"traffic",
"alberta"
] |
Is it illegal to spray weeds on another person's land without permission, and thus to harm animals?
| 5 |
https://law.stackexchange.com/questions/3380/is-it-illegal-to-spray-weeds-on-another-persons-land-without-permission-and-th
|
CC BY-SA 4.0
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<p><em>I am in England</em>.
I rent a field off an elderly friend who can no longer tend it. I use it as grazing for 2 horses.</p>
<p>A local farmer who is clearly obsessed by weeds is regularly going round the local verges and field spraying various "weeds." One of the fields he has sprayed is the field I rent.<br />
<em>I must note I have not witnessed him in the field however nettles in the field died at the same time and in the same way as nettles on a nearby verge that I saw him spray.</em></p>
<p>Several days after the nettles died I noticed both horses had weeping blisters in their mouth, however they healed soon after with the help of some ointment (hopefully no long term harm done.)</p>
<p>Is this behaviour illegal and if so who should I report it to? Local council / DEFRA (Department for Environment, Food & Rural Affairs) / police?</p>
| 3,380 |
[
{
"answer_id": 3389,
"body": "<p>You would need to be able to prove that he encroached on your land (or your tenancy to land) with his pesticide/herbicide. You should speak to him and let him know that you feel his herbicide made its way (it could've come with the wind if its just on the borders) to the land, and as a result your animals were harmed. It's always better to see if you can handle this by appealing to his sense of responsibility. Just ask him to not spray the border, or not spray on a day with any breeze if he insists on spraying the entirety of his land. If he denies spraying the border (or at all), you can try to catch him in the act and film it, or find neighboring witnesses, such that you can file a complaint for trespass. It is probably not illegal in the true sense of the word, but it may subject him to damages. </p>\n\n<p>You may try contacting your department of agriculture.</p>\n\n<p>If he is a commercial applicator there are likely regulations that dictate the necessity of following label instructions or specific regulations or laws in your community that may also subject him to liability under common law, if the pesticide drift enters the properties of others (like yours) and causes damage. While pesticide particles carried by air may cause harm to people, your type of damage or damage to another's agricultural crops is the typical claim made and the typical measure of damages. More-so when they drift to organic crops. </p>\n\n<p>Generally, plaintiff(s) must show that defendant(s) breached either the label instruction or a regulatory provision to succeed in recovering damages outside of common law. Typically, there are labeling instructions or regulatory provisions that limit spray drift. </p>\n\n<p>Is he spraying whole fields such that you think he is purchasing commercial amounts? </p>\n\n<p>If he is just spraying his small field or plot of land, you will have to establish a claim for trespass in order to recover damages. You also must be able to prove damages – e.g., veterinarian bills, loss of use of the animals for plowing or whatever. You have to have show the act (spraying), causation (the cause and effect) and damages (the actual effect to you that brought about specific damages) to make a claim. So far, you don't seem to have actual evidence of the act, although if you can acquire that, causation seems to be met, as well as the potential to show specific damages.</p>\n\n<p>Unfortunately, the pain and suffering of animals does not have the same impact or carry any of the same rights as people incurring some sort of physical harm. It must be some actual quantifiable damage to you. Only you can determine what this is. </p>\n\n<p>In neighborly disputes, the measure of damages is often not worth the cost of litigation. Sad but true.</p>\n\n<p>As a plaintiff (if it comes to that), you'll need to establish trespass or another common law cause of action as a basis for the recovery. Or you could seek equitable relief (ask the court to order he stop the practice). These claims prove challenging for plaintiffs to establish because of the common usage of pesticides. Also, strict liability is generally not available as a cause of action. You may have a claim in nuisance, but you still must show those three elements of proof. There are typically laws that preempt negligence claims concerning labeling (like in the US), and remaining negligence claims tend to be difficult to prove, for the very reason you stated (you didn't see him do it but you know he did).</p>\n\n<p>This means that in order to show you (or your chattel) were injured by spray drift you will probably have to file a claim in trespass. However, chemical spray drift is so intangible it is difficult for plaintiffs to meet the requirements for a trespass claim. States’ approaches to trespass for securing damages resulting from spray drift vary, and this can mean that a plaintiff must carefully plead interference with exclusive possession (your right to the land) together with injury meaning substantial property damages or damage that is physical, to establish their cause of action in trespass.</p>\n",
"score": 9
}
] |
[
"england-and-wales",
"tort"
] |
(Germany) Does a follow-up lease contract completely supersede the old one?
| 1 |
https://law.stackexchange.com/questions/90469/germany-does-a-follow-up-lease-contract-completely-supersede-the-old-one
|
CC BY-SA 4.0
|
<p>In the last three years or so I had to sign a new lease contract for the same place three times:</p>
<ul>
<li>At the very beginning of the lease</li>
<li>When my girlfriend moved in</li>
<li>When I had to get an extension for 3 months until we find a new place (she had to move away) and I wrap up things at my current location</li>
</ul>
<p>I found numerous problems among which a dishwasher that was not working and also damages that started occurring shortly after I moved in due to missing sealant at the shower cabin (yeap, it was never there to begin with).</p>
<p>I informed the landlord right away (verbally). When I signed the second time, I made sure that these things were in the contract. However the landlord's son spun things my way and the shower cabin damages were pinned on me. I was stupid enough to sign it.</p>
<p>The third time I signed the contract I made sure to correct this mistake and this time I wrote down that the damages have occurred due to missing sealant (hence not my fault). Needles to say the dishwasher was also mentioned. The landlord and I both signed and this is my current contract.</p>
<p>Sadly, the relationship has deteriorated quite rapidly (due to the son's behaviour towards me). I will be moving out and I am pretty sure that they will try to pin on my whatever is possible to hold back my deposit (give or take 1.6K EUR).</p>
<p>The dishwasher was checked by a technician (hired by the landlord 2 years or so ago). I also showed the landlord right away that it is not working (took over 1 year to get a technician to check it out though...).</p>
<p>I would like to know if my current contract completely supersedes the old one or, since it involves the same residence, things such as damages etc. are automatically transferred. If the latter, how would one treat the case I have described above regarding the shower cabin?</p>
| 90,469 |
[
{
"answer_id": 90472,
"body": "<blockquote>\n<p>I would like to know if my current contract completely supersedes the old one</p>\n</blockquote>\n<p>This is impossible to answer without knowing the details of the contract.</p>\n<p>Many contracts contain language that explicitly supersedes any "previous and contemporaneous" contracts and agreements between the parties. Even if akin language is missing in your contract, other terms or details might lead to the same conclusion. For instance, clauses regarding the deposit --particularly the amount-- and the timing of your actual deposit could be indicative that the parties' mutual understanding at the time of signing the latest contract was that there were no pending deductions from your deposit (or, if there were any, the landlord waived them).</p>\n",
"score": 1
},
{
"answer_id": 90545,
"body": "<p><strong>No</strong>, it does not.\nThe previous contracts have not been canceled since this would need to be done in written form, § 568 Ⅰ BGB.\nThus an amendment or superseding contract according § 311 Ⅰ BGB requires <em>making reference</em> to the previous contract.</p>\n<p>It is quite possible to contract for the same thing multiple times as emphasized by § 311a Ⅰ BGB.</p>\n<ul>\n<li>On the one hand, your landlord now has <em>three</em> legal obligations to provide you three times the <em>same</em> apartment.\nObviously this is not possible; it only works once.</li>\n<li>On the other hand, you have three legal obligations to pay rent.\nFor the other two rents, however, you have the defense of non-performance (the landlord hasn’t given you the apartment <em>twice</em> or thrice).</li>\n</ul>\n",
"score": 1
}
] |
[
"contract-law",
"rental-property",
"germany",
"residential-lease"
] |
Misleading business name
| 1 |
https://law.stackexchange.com/questions/90532/misleading-business-name
|
CC BY-SA 4.0
|
<p>What legal actions can be taken against a company that uses manipulative naming tactics, such as including the word 'All' in its name, in order to mislead or confuse customers?</p>
<p>Are there any laws or regulations in place to prevent companies from using deceptive names or branding, and what can consumers do to protect themselves from such practices? For example:</p>
<blockquote>
<p>AllFood Restaurant, AllBank</p>
</blockquote>
| 90,532 |
[
{
"answer_id": 90544,
"body": "<p><strong>Are there any laws or regulations in place to prevent companies from using deceptive names or branding</strong>?</p>\n<p><a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged 'united-kingdom'\" aria-label=\"show questions tagged 'united-kingdom'\" rel=\"tag\" aria-labelledby=\"tag-united-kingdom-tooltip-container\">united-kingdom</a></p>\n<p><strong>Yes</strong>.</p>\n<p>The applicable legislation may be found in the Companies Act 2006.</p>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/2006/46/section/1198?timeline=false\" rel=\"nofollow noreferrer\">Section 1198</a> states that:</p>\n<blockquote>\n<p>(1) A person must not carry on business in the United Kingdom under a name that gives so misleading an indication of the nature of the activities of the business as to be likely to cause harm to the public</p>\n<p>(2) A person who uses a name in contravention of this section commits an offence.</p>\n<p>[...]</p>\n</blockquote>\n<p>Also a further provision at <a href=\"https://www.legislation.gov.uk/ukpga/2006/46/section/54?timeline=false\" rel=\"nofollow noreferrer\">Section 54</a> states that:</p>\n<blockquote>\n<p>(1) The approval of the Secretary of State is required for a company to be registered under this Act by a name that would be likely to give the impression that the company is connected with—</p>\n<ul>\n<li><p>(a) Her (<em>sic</em>) Majesty's Government, any part of the Scottish administration, the Welsh Assembly Government or Her Majesty's Government in Northern Ireland,</p>\n</li>\n<li><p>(b) a local authority, or</p>\n</li>\n<li><p>(c) any public authority specified for the purposes of this section by <strong>regulations made by the Secretary of State</strong>.</p>\n</li>\n</ul>\n<p>[...]</p>\n</blockquote>\n<p>The Regulations referred to above are the <a href=\"https://www.legislation.gov.uk/uksi/2014/3140/contents\" rel=\"nofollow noreferrer\">Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2014</a> which lists, at <a href=\"https://www.legislation.gov.uk/uksi/2014/3140/schedule/1?timeline=false\" rel=\"nofollow noreferrer\">Schedule 1</a>, a host of words and expressions that are prohibited or require approval as the case may be.</p>\n<p>This list is far too long to reproduce in full, but by way of example it includes:</p>\n<blockquote>\n<p>Bank</p>\n<p>Charity</p>\n<p>Child support</p>\n<p>Police</p>\n<p>Royal</p>\n<p>Stock exchange</p>\n<p>University</p>\n</blockquote>\n",
"score": 3
}
] |
[
"regulations",
"branding",
"philippines"
] |
When is it encumbent on a court to rule on arguments not raised by the defense?
| 2 |
https://law.stackexchange.com/questions/66542/when-is-it-encumbent-on-a-court-to-rule-on-arguments-not-raised-by-the-defense
|
CC BY-SA 4.0
|
<p>Usually a court will not make a ruling using an argument which the parties to the case have not raised. <a href="https://law.stackexchange.com/questions/37104/are-judges-limited-in-their-reasoning-to-arguments-raised-by-the-parties">This subject has been discussed on this site previously.</a> However, I would argue that this legal principle only applies to substantive arguments, in other words when the argument involves interpretation of evidence. When an argument involves no interpretation and is based either on logic alone, or on evidence which admits of no alternative interpretations, then I would argue that a judge has the right to intervene. The question here is when does that right become a duty? Also, is there a Latin or other terminology that applies to this situation?</p>
<p>So, as an example of this, imagine a situation where a judge has previously presided over a criminal case in which a particular defendant was acquitted by a jury. Later, that same defendant is brought before the judge again on the same charge. For whatever reason, the defending attorney fails to argue that his client should be not be tried twice on the same charge. However, the judge knows for a fact that this is the case because he presided over the previous trial himself. Is it encumbent on the judge to dismiss the charge?</p>
<p>Here is another example involving logic alone. Imagine that a defendant is tried on a criminal charge and convicted by a jury on that charge. Before sentencing however, the judge discovers that the legislature had repealed the law under which the defendant was charged several weeks before the alleged crime had occurred. At this point the judge realizes that he made an error at the arraignment by allowing the case to come to trial at all. Is it now encumbent on the judge to set aside the jury verdict and dismiss the charge?</p>
| 66,542 |
[
{
"answer_id": 66553,
"body": "<h2>Never</h2>\n<p>A common law judge’s (and jury’s) task is to resolve the case that the parties choose to bring based on admitted evidence.</p>\n<p>Common law is adversarial, civil law is inquisitorial. A common law judge’s (or tribunal’s) role is to decide the parties’ dispute; unlike a civil law judge they have no (direct) interest in finding the truth.</p>\n<p>A judge that decides on the basis of facts not in evidence or law that the parties have not had the opportunity to be heard on has not afforded them <a href=\"https://en.m.wikipedia.org/wiki/Natural_justice\" rel=\"nofollow noreferrer\">natural justice/procedural fairness</a>. If they do that, they have fallen into reviewable error. Whether such an appeal is successful will turn on if doing it right rather than wrong might have made a difference.</p>\n<p>The judge’s (or jury’s) personal knowledge is <strong>not</strong> evidence.</p>\n<p>However, their hands are not tied. They can draw such matters to the parties’ attention and call for submissions. This meets the requirements of procedural fairness: if the parties’ want to say something or introduce evidence of the matter, they can and it is then properly before the forum. If they don’t, they don’t. Nevertheless, the judge needs to be impartial in this: they cannot become an advocate - it’s better to say “tell me about X” rather than “I think this about X”.</p>\n<p>For your examples:</p>\n<ol>\n<li>The judge calls for submissions on the identity of the defendant and the identity of the defendant in the other case and if the charges are identical.</li>\n<li>The judge would go to the parties, advise them if the situation and ask if anyone would like to file a motion for the conviction (for that’s what it is once the verdict is delivered) to be set aside. They would probably withhold sentencing until the parties’ decided if they want to and the motion, if any, was resolved.</li>\n</ol>\n",
"score": 2
}
] |
[
"united-states",
"common-law",
"jurisprudence"
] |
How is transient occupancy determined in Colorado?
| 3 |
https://law.stackexchange.com/questions/90536/how-is-transient-occupancy-determined-in-colorado
|
CC BY-SA 4.0
|
<p>Colorado Revised Statutes § <a href="https://casetext.com/statute/colorado-revised-statutes/title-38-property-real-and-personal/tenants-and-landlords/article-12-tenants-and-landlords/part-5-obligation-to-maintain-residential-premises-unlawful-removal/section-38-12-511-application" rel="nofollow noreferrer">38-12-511</a> (2020), "(d) Transient occupancy in a hotel or motel that lasts less than thirty days;"</p>
<p>In Colorado how is transient occupancy determined? If a hotel guest is forced to move rooms every 28 days do they remain a transient occupant, or does them occupying the same hotel but different rooms for longer than 30 days make them a non-transient occupant?</p>
| 90,536 |
[
{
"answer_id": 90537,
"body": "<p>No cases have interpreted that section of the statute since it took effect on September 1, 2008 more than fourteen years ago. A court presented with the question would resolve it as a matter of first impression. There are also no state regulations further defining this exclusion of which I am aware.</p>\n<p>There has been some litigation regarding similar local laws, such as a Greenwood Village, Colorado ordinance related to hotel/motel v. rental property status, but I'm not sure that it has generated any binding published appellate decision precedents, and that wouldn't be controlling. Precedents from litigation over that similar municipal ordinance could be distinguished in a variety of ways.</p>\n<p>A reading in which "occupying the same hotel but different rooms for longer than 30 days make them a non-transient occupant" which would be the more protective of the occupant and would reflect the lack of mention of particular rooms, as opposed to particular motels or hotels in the statute, would seem like the more plausible reading. But isn't so perfectly clear that a lawyer couldn't legitimately argue for a different interpretation.</p>\n<p>The fact that the statute does not apply to arrangements like this if they are "created to avoid" the application of the statute also suggests that a court would be hostile towards a hotel/motel owner who attempted to avoid the application of the statute by moving occupants from room to room every month.</p>\n<p>While I am aware of particular hotels and motels in Colorado where this could be an issue that needs to be resolved (particularly extended stay motels, and certain ordinary motels on U.S. Highway 40 and along current major highways that tend of have long term residents), it is also clearly an edge case that excludes the vast majority of ordinary hotel and motel customers from Colorado's warranty of habitability protections, and that also clearly protects at a minimum, hotel/motel residents that have stayed in a single room for at least 30 days.</p>\n<p>Often, hotels and motels would be subject to additional or different local ordinance and common law obligations that would be more protective of a consumer than Colorado's rather weak warranty of habitability protections under this statute (at common law, hotel operators owed extremely strong duties to treat their customers with the utmost care and hospitality). But again, there isn't a lot of case law one way or the other that is on point.</p>\n",
"score": 1
}
] |
[
"legal-terms",
"rental-property",
"consumer-protection",
"colorado"
] |
Could a state enforce a law that establishes a definition of "biological sex"?
| -3 |
https://law.stackexchange.com/questions/90517/could-a-state-enforce-a-law-that-establishes-a-definition-of-biological-sex
|
CC BY-SA 4.0
|
<p>There appears to be no federal law establishing a definition of "biological sex", according to an earlier Law SE question: <a href="https://law.stackexchange.com/questions/27319/is-there-a-definition-of-biological-sex-in-u-s-law">Is there a definition of "biological sex" in U.S. law?</a></p>
<p>Currently, there is a bill in the Montana legislature that seeks to <a href="https://montanafreepress.org/2023/02/28/montana-bill-creates-strict-definition-for-sex-legally-sidelining-intersex-and-transgender-people/" rel="nofollow noreferrer">create a strict definition for ‘sex'</a>.</p>
<p>The law would <em>"create a rigid definition of “sex,” boxing out legal recognition of intersex, nonbinary and transgender people in far-flung references across state law..."</em></p>
<p>Excerpt of the bill itself <a href="https://trackbill.com/bill/montana-senate-bill-458-define-sex-in-montana-law/2377583/" rel="nofollow noreferrer">https://trackbill.com/bill/montana-senate-bill-458-define-sex-in-montana-law/2377583/</a></p>
<blockquote>
<p>SB 458... would define sex as “the organization of the body and
gametes for reproduction in human beings and other organisms,”
specifying that humans have “exactly two sexes, male and female, with
two corresponding gametes. The sexes are determined by the biological
indication of male or female, including sex chromosomes, gonads, and
nonambiguous internal and external genitalia present at birth, without
regard to an individual’s psychological, chosen, or subjective
experience of gender.”</p>
</blockquote>
<p>If that bill became state law, could it be enforced - by that I mean the non-recognition of intersex, nonbinary and transgender people - by the state of Montana absent a federal law, or until a federal court struck it down?</p>
<p>Or would this be simply a case of the Supremacy Clause? <a href="https://en.wikipedia.org/wiki/Supremacy_Clause" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Supremacy_Clause</a></p>
| 90,517 |
[
{
"answer_id": 90530,
"body": "<p>There are <a href=\"https://transequality.org/federal-case-law-on-transgender-people-and-discrimination\" rel=\"nofollow noreferrer\">several dozen federal case precedents</a> addressing the rights of transgender individuals under existing federal laws.</p>\n<p>The cases most squarely on point and binding on the U.S. District Court for the District of Montana are <em>Schwenk v. Hartford</em>, 204 F.3d 1187 (9th Cir. Feb. 29, 2000) (holding that the Gender Motivated Violence Act (GMVA) applied to targeting of a transgender person) and <em>Parents for Privacy v. Barr</em>, No.18-35708 (9th Cir. Feb. 12, 2020) (rejecting arguments that a school policy protecting transgender students violated other students' rights).</p>\n<p>To the extent that the Montana law was used in an attempt to do an end run around existing federal law protections of transgender individuals, it would probably be struck down as applied under the supremacy clause. Various other federal courts have found that transgender individuals are protected under:</p>\n<ul>\n<li>The Equal Protection Clause of the 14th Amendment to the U.S. Constitution</li>\n<li>Title VII of the 1964 Civil Rights Act,</li>\n<li>Title IX of the Education Amendments Act of 1972,</li>\n<li>The Equal Credit Opportunity Act,</li>\n<li>Title VII, Section 1557 of the Affordable Care Act,</li>\n<li>Title IX of the Affordable Care Act,</li>\n<li>The Fair Housing Act, and</li>\n<li>The Eighth Amendment to the U.S. Constitution.</li>\n</ul>\n<p>The U.S. Supreme Court has repeatedly declined to grant certiorari to review or overturn these decisions protecting transgender rights (which isn't to say that it couldn't adopt new precedents overruling these decisions in the future).</p>\n<p>So, in almost all areas where sex discrimination is prohibited under federal law, the Montana statute would have to yield to federal law. Federal law protections against sex discrimination aren't all encompassing, but the federal courts have not hesitated to invoke the Equal Protection Clause of the 14th Amendment when no statutory protections apply. So, there probably aren't many circumstances in which this law could have a meaningful effect.</p>\n<p>The fact that a Montana state law might say otherwise is irrelevant.</p>\n<p>The U.S. Supreme Court has recently specifically made clear to the Montana Supreme Court that it may not enforce state laws that violate federal law stating:</p>\n<blockquote>\n<p>The Supremacy Clause provides that “the Judges in every State shall be\nbound” by the Federal Constitution, “any Thing in the Constitution or\nLaws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.\n“[T]his Clause creates a rule of decision” directing state courts that\nthey “must not give effect to state laws that conflict with federal\nlaw[ ].” <em>Armstrong v. Exceptional Child Center, Inc.</em>, 575 U.S. 320,\n324, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015).</p>\n</blockquote>\n<p><em>Espinoza v. Montana Dept. of Revenue</em>, 207 L. Ed. 2d 679 (June 30, 2020).</p>\n<p>Similarly, in another not too ancient case, the U.S. Supreme Court held that:</p>\n<blockquote>\n<p>The question presented in this case is whether the holding of\n<em>Citizens United</em> applies to the Montana state law. There can be no serious doubt that it does. <em>See</em> U.S. Const., Art. VI, cl. 2.</p>\n</blockquote>\n<p><em>Am. Tradition Partn., Inc. v. Bullock</em>, 567 U.S. 516, 516 (2012).</p>\n<p>Another older and emphatic provision making clear that state officials must follow federal law from the U.S. Supreme Court is as follows:</p>\n<blockquote>\n<p>Article VI of the Constitution makes the Constitution the ‘supreme Law\nof the Land.’ In 1803, Chief Justice Marshall, speaking for a\nunanimous Court, referring to the Constitution as ‘the fundamental and\nparamount law of the nation,’ declared in the notable case of <em>Marbury\nv. Madison</em>, 1 Cranch 137, 177, 2 L.Ed. 60, that ‘It is emphatically\nthe province and duty of the judicial department to say what the law\nis.’ This decision declared the basic principle that the federal\njudiciary is supreme in the exposition of the law of the Constitution,\nand that principle has ever since been respected by this Court and the\nCountry as a permanent and indispensable feature of our constitutional\nsystem. It follows that the interpretation of the Fourteenth Amendment\nenunciated by this Court in the Brown case is the supreme law of the\nland, and Art. VI of the Constitution makes it of binding effect on\nthe States ‘any Thing in the Constitution or Laws of any State to the\nContrary notwithstanding.’ Every state legislator and executive and\njudicial officer is solemnly committed by oath taken pursuant to Art.\nVI, ¶3 ‘to support this Constitution.’ Chief Justice Taney, speaking\nfor a unanimous Court in 1859, said that this requirement reflected\nthe framers' ‘anxiety to preserve it [the Constitution] in full force,\nin all its powers, and to guard against resistance to or evasion of\nits authority, on the part of a State. * * *’ <em>Ableman v. Booth</em>, 21\nHow. 506, 524, 16 L.Ed. 169.1112</p>\n<p>No state legislator or executive or judicial officer can war against\nthe Constitution without violating his undertaking to support it.\nChief Justice Marshall spoke for a unanimous Court in saying that: ‘If\nthe legislatures of the several states may, at will, annul the\njudgments of the courts of the United States, and destroy the rights\nacquired under those judgments, the constitution itself becomes a\nsolemn mockery * * *.’ <em>United States v. Peters</em>, 5 Cranch 115, 136, 3\nL.Ed. 53. A Governor who asserts a power to nullify a federal court\norder is similarly restrained. If he had such power, said Chief\nJustice Hughes, in 1932, also for a unanimous Court, ‘it is manifest\nthat the fiat of a state Governor, and not the Constitution of the\nUnited States, would be the supreme law of the land; that the\nrestrictions of the Federal Constitution upon the exercise of state\npower would be but impotent phrases * * *.’ <em>Sterling v. Constantin</em>,\n287 U.S. 378, 397–398, 53 S.Ct. 190, 195, 77 L.Ed. 375.</p>\n</blockquote>\n<p><em>Cooper v. Aaron</em>, 358 U.S. 1, 18–19 (1958)</p>\n<p>Any Montana government official who tried to enforce that law that has been held to be overridden by federal law in sheer defiance of federal law would end up like Rowan County, Kentucky Clerk Kim Davis: <a href=\"https://nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html\" rel=\"nofollow noreferrer\">in jail for being in contempt of court</a> in short order.</p>\n",
"score": 4
},
{
"answer_id": 90526,
"body": "<p>This bill doesn't create any new laws. It just clarifies the meaning of the word "sex" in all the existing laws (or at least, many of them). This is plainly obvious by reading the bill.</p>\n<p>Therefore, there is nothing to enforce, except the existing laws. For example (on page 12) a marriage between a cisgender man and a transgender woman is now considered a gay marriage, which is illegal in Montana. The existing penalty for gay marriage would apply. On page 4, political party precinct committee memberships (whatever those are) must consist of one man and one woman; a party may, for example, submit one transgender woman and one cisgender woman. If a party submits one transgender woman and one cisgender man, the penalty for improper committee memberships would apply. And so on.</p>\n<hr />\n<p>The following language is also present in the bill:</p>\n<blockquote>\n<p>"Sex" means the organization of the body and gametes for reproduction in human beings and other organisms. <em>In human beings, there are exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual's psychological, chosen, or subjective experience of gender.</em></p>\n</blockquote>\n<p>The part that I have italicized section is simply clarifying the first sentence and is not a law to enforce.</p>\n",
"score": 0
}
] |
[
"us-federal-government",
"federal-courts",
"tenth-amendment",
"montana"
] |
Trademark as part of open source code namespace
| 6 |
https://law.stackexchange.com/questions/90509/trademark-as-part-of-open-source-code-namespace
|
CC BY-SA 4.0
|
<p>I've been using open source projects and libraries for long time. Recently I come across a case which mixes trademark and copyright. Looking at an example of <a href="https://www.eclipse.org/legal/logo_guidelines.php" rel="noreferrer">Eclipse Foundation trademark policy</a> I see below statement:</p>
<blockquote>
<p>Only Eclipse Projects are authorized to develop or maintain software packages that use Eclipse Foundation namespaces such as 'org.eclipse' in their namespace. An important use of an Eclipse Trademark is the 'org.eclipse' string used on all namespaces for Eclipse Projects. This naming convention is used to identify code that has been developed as part of an Eclipse Project.</p>
</blockquote>
<p>Similar statement was recently copied into <a href="https://www.openhab.org/about/trademark.html" rel="noreferrer">openHAB trademark</a> policy:</p>
<blockquote>
<p>Only the openHAB project is authorized to develop or maintain software packages that use openHAB namespaces such as 'org.openhab' in their namespace. This naming convention is used to identify code that has been developed as part of the openHAB project.</p>
</blockquote>
<p>Thing is - each of these projects are based on <a href="https://www.eclipse.org/legal/epl-2.0/" rel="noreferrer">Eclipse Public License v2</a> which permits re-use and modifications:</p>
<blockquote>
<ol start="3">
<li>REQUIREMENTS<br>
3.3 Contributors may not remove or alter any copyright, patent, trademark, attribution notices, disclaimers of warranty, or limitations of liability (‘notices’) contained within the Program from any copy of the Program which they Distribute, provided that Contributors may add their own appropriate notices.</li>
</ol>
</blockquote>
<blockquote>
<ol start="4">
<li>COMMERCIAL DISTRIBUTION<br>
(...) While this license is intended to facilitate the commercial use of the Program, the Contributor who includes the Program in a commercial product offering should do so in a manner which does not create potential liability for other Contributors.</li>
</ol>
</blockquote>
<p>Given that either <code>org.eclipse</code> or <code>org.openhab</code> namespaces are claimed to be included in trademark protection policy, changing these would mean that renaming of that package could violate source code and license by removing trademark. Clearly there is a conflict between source code license and trademark, which one should be leading in such case?</p>
<p>Can source code namespace be protected by a trademark?</p>
| 90,509 |
[
{
"answer_id": 90533,
"body": "<p>You're misreading the license.</p>\n<blockquote>\n<p>3.3 Contributors may not remove or alter any copyright, patent, trademark, attribution notices, disclaimers of warranty, or limitations of liability (‘notices’) contained within the Program... provided that Contributors may add their own appropriate notices.</p>\n</blockquote>\n<p>You are not allowed to remove any copyright notices, patent notices, trademark notices, attribution notices, disclaimers of warranty or limitations of liability in the Program.</p>\n<p>It doesn't make sense that you are not allowed to remove any "patent". Because you can't remove a "patent," you can only remove a "patent notice". Same logic applies to copyright, you don't remove a copyright because that's an abstract thing. You can only remove a copyright notice.</p>\n<p>The fact that all of these are called 'notices' only enforces this, as well as the fact that it says you can "add [your] own appropriate notices".</p>\n<p>Therefore the license doesn't say you can't remove trademarks. You just can't remove trademark notices.</p>\n",
"score": 2
}
] |
[
"copyright",
"trademark"
] |
Does the US Government monitor and/or revoke newly naturalized citizens?
| 4 |
https://law.stackexchange.com/questions/82024/does-the-us-government-monitor-and-or-revoke-newly-naturalized-citizens
|
CC BY-SA 4.0
|
<p>I know to some extent the US watches everyone, but what I am thinking of is whether newly naturalized citizens are watched to see if their naturalization process seems insincere <strong>in hindsight</strong>. For example:</p>
<ol>
<li>If a newly naturalized citizen immediately <strong>emigrates</strong> from the US
<strong>back</strong> to their country of origin (although continues to file and pay
relevant expat taxes).</li>
<li>If a newly naturalized citizen, who became a citizen after 3 years of residency because they're married to a citizen (rather than the usual 5 years, <a href="https://www.uscis.gov/citizenship/learn-about-citizenship/citizenship-and-naturalization/i-am-married-to-a-us-citizen" rel="nofollow noreferrer">src</a>) immediately gets <strong>divorced</strong>. (Obviously you have to present evidence of a bona fide marriage - which mine is - to even get citizenship, <em>this is hypothetical</em>)</li>
<li>If a newly naturalized citizen, who took an amended oath NOT swearing to serve in the US military, due to 'deeply held religious or moral code' (<a href="https://www.uscis.gov/policy-manual/volume-12-part-j-chapter-3" rel="nofollow noreferrer">src</a>), then joins the military, gets a concealed carry permit, gets an FFL or similarly seems to <strong>not be very pacifisty</strong>.</li>
<li>If a newly naturalized citizen immediately joins the <strong>Communist Party</strong>, which although not illegal (<a href="https://law.stackexchange.com/questions/77618/is-communism-illegal-in-the-u-s-because-of-the-communist-control-act-of-1954">src</a>) would have disqualified them from citizenship if they'd joined the CP before applying.</li>
</ol>
<p>I know there are certain things where the US can revoke citizenship, like serving in a foreign military who's at war with the US, but none of my list are illegal activities in themselves.</p>
<p><strong>Does the US watch for and/or revoke the citizenship of new citizens for this kind of stuff?</strong></p>
<p>(1) could happen if my parents get sick or injured and I need to become their carer, for example. Also, I do intend to modify my citizenship oath/affirmation (3): I have religious conviction against bearing arms for any worldly nation, but I am willing to use force in private-individual self-defense, and I feel like the nuanced distinction between those may be lost on any watchdogs.</p>
<p>I would also be curious whether misdemeanors or felonies shortly after citizenship can result in revocation.</p>
| 82,024 |
[
{
"answer_id": 82114,
"body": "<blockquote>\n<p>If a newly naturalized citizen immediately emigrates from the US back to their country of origin (although continues to file and pay relevant expat taxes).</p>\n</blockquote>\n<p>This used to be grounds for expatriation, but in 1964, in <a href=\"https://www.law.cornell.edu/supremecourt/text/377/163\" rel=\"nofollow noreferrer\">Schneider v. Rusk</a>, the supreme court ruled that it was impermissible. The law was subsequently amended to remove the relevant provision.</p>\n",
"score": 5
},
{
"answer_id": 82026,
"body": "<p>Naturalization can be revoked per <a href=\"https://www.law.cornell.edu/uscode/text/8/1451\" rel=\"nofollow noreferrer\">8 USC 1451</a></p>\n<blockquote>\n<p>on the ground that such order and certificate of naturalization were\nillegally procured or were procured by concealment of a material fact\nor by willful misrepresentation</p>\n</blockquote>\n<p>and furthermore</p>\n<blockquote>\n<p>refusal on the part of a naturalized citizen within a period of ten\nyears following his naturalization to testify as a witness in any\nproceeding before a congressional committee concerning his subversive\nactivities, in a case where such person has been convicted of contempt\nfor such refusal, shall be held to constitute a ground for revocation\nof such person’s naturalization under this subsection as having been\nprocured by concealment of a material fact or by willful\nmisrepresentation.</p>\n</blockquote>\n<p>This revocation is retroactive, and essentially means "you never were a US citizen".</p>\n<p>Under <a href=\"https://www.law.cornell.edu/uscode/text/8/1481\" rel=\"nofollow noreferrer\">8 USC 1481</a>, anyone can lose their citizenship for certain acts which have "the intention of relinquishing United States nationality".</p>\n<p>W.r.t. (1): no, there is no requirement for a citizen to live in the US. (2) No, there is no oath where they promise to stay married for 5 years, and anybody is entitled to change their mind about a marriage (the requirement is that you be married for at least 3 years, which is true). (3) There is no life-long commitment to being a pacifist or holding any particular philosophy, it just has to be true at the time you take the vow. (4) There is no vow that you don't have communistical leanings. The only legal restriction is that you are deemed inadmissible by USCIS if you have been a member of the CP. But you are allowed to change your viewpoint. Committing crimes is also not grounds for revoking citizenship</p>\n",
"score": 3
},
{
"answer_id": 82102,
"body": "<blockquote>\n<p>Does the US watch for and/or revoke the citizenship of new citizens\nfor this kind of stuff?</p>\n</blockquote>\n<p>There has historically been <a href=\"https://www.aila.org/advo-media/issues/all/featured-issue-denaturalization-efforts-by-uscis\" rel=\"nofollow noreferrer\">no mechanism in place</a> to systemically monitor naturalized citizens for grounds for revocation of citizenship.</p>\n<p>These cases have historically been brought to the attention of the government on a case by case complaint driven basis.</p>\n<p>As the linked source recounts:</p>\n<blockquote>\n<ul>\n<li><p>For many years, the DOJ focused its efforts to strip immigrants of their citizenship on suspected war criminals who lied on their\nimmigration paperwork, most notably former Nazis. And, USCIS and DOJ\npursued cases as they arose, but not through a coordinated effort.</p>\n</li>\n<li><p>In February 2020, DOJ announced the creation of a section dedicated to denaturalization cases. Noting that, “While the Office of\nImmigration Litigation already has achieved great success in the\ndenaturalization cases it has brought, winning 95 percent of the time,\nthe growing number of referrals anticipated from law enforcement\nagencies motivated the creation of a standalone section dedicated to\nthis important work.”</p>\n</li>\n<li><p>According to the New York Times, “denaturalizations have ramped up under the Trump administration: Of the 228 denaturalization cases that\nthe department has filed since 2008, about 40 percent of them were\nfiled since 2017, according to official department numbers. And over\nthe past three years, denaturalization case referrals to the\ndepartment have increased 600 percent.”</p>\n</li>\n<li><p>In a budget request for FY2019, the administration asked for $207.6 million to investigate 887 additional leads it expects to get into\nAmerican citizens who may be vulnerable to denaturalization, and to\nreview another 700,000 immigrant files.</p>\n</li>\n<li><p>The Trump administration launched an office that focuses on identifying immigrants who are suspected of cheating to get their\ngreen cards or citizenship and seek to denaturalize these individuals.</p>\n</li>\n<li><p>In 2018, USCIS Director Cissna stated that “he hopes the agency’s new office in Los Angeles will be running by next year but added that\ninvestigating and referring cases for prosecution will likely take\nlonger.”</p>\n</li>\n<li><p>In September 2016, the DHS Office of the Inspector General (OIG) released a report finding that USCIS granted U.S. citizenship to at\nleast 858 individuals ordered deported or removed under another\nidentity when, during the naturalization process, their digital\nfingerprint records were not available. OIG recommends that ICE finish\nuploading into the digital repository the fingerprints it identified,\nand that DHS resolve these cases of naturalized citizens who may have\nbeen ineligible. Further, the report found that fingerprint records\nwere missing from hundreds of thousands of cases for a variety of\nreasons.</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 82032,
"body": "<blockquote>\n<p>Does the US Government monitor and/or revoke newly naturalized citizens?</p>\n</blockquote>\n<p>It may well monitor, but it won't revoke citizenship merely because you don't keep your promises (if they can be even labeled so).</p>\n<p>What is important is that you don't provide false information to the government when <em>applying</em> for citizenship. Giving promises to keep your mind in a certain state (e.g. not intending to bear arms, divorce or move abroad) and then changing your mind is not giving false information.</p>\n<p>But if it can be proven that you in fact lied about your intentions (e.g. you <em>knew</em> that you will leave the country as soon as citizenship is granted, or divorce etc.), then that will perfectly count as providing false information, and so your citizenship could be revoked.</p>\n",
"score": 0
}
] |
[
"united-states",
"privacy",
"immigration",
"citizenship"
] |
In a criminal trial, what is the sequence of proceedings?
| -2 |
https://law.stackexchange.com/questions/90387/in-a-criminal-trial-what-is-the-sequence-of-proceedings
|
CC BY-SA 4.0
|
<p>Does the prosecution advance their own case first, calling their witnesses, examining them before the defense cross examines them, all before the defense then presents their case, calling each of their own witnesses to examine before they are cross examined by the prosecution?</p>
<p>Or can it depend on circumstances whether the prosecution presents their case first or the defense does. Can a party request for a different order of proceedings in a given case?</p>
<p>And does it matter who had coordinated and arranged for the attendance of a given witness who they may be called by? In other words, suppose the prosecution coordinated the preparation of and submitted the witness statements of witness A, B & C, the defence had arranged for the evidence statements of witnesses D & E, but all 5 of these witnesses’ statements are nonetheless admitted before the court.</p>
<p>Now suppose the prosecution is presenting their case first, as in the suggested standard sequence above, and it wishes to call witnesses D & E, even though these are not “their” witnesses. Is that allowed, to examine them of its own initiative prior to the defence having been given the chance to present their case? And suppose the prosecution has nothing to add to its own witness’s written statement through examination. Must the prosecution necessarily “call” its own witness?</p>
<p>If it doesn’t do so, then what impact does this have on the weight or admissibility of the written statement?</p>
| 90,387 |
[
{
"answer_id": 90389,
"body": "<blockquote>\n<p>what is the sequence of proceedings?</p>\n</blockquote>\n<p>See <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1107798/crim-proc-rules-2020-part-25.doc\" rel=\"nofollow noreferrer\">Rule 25.9</a>:</p>\n<ul>\n<li>the prosecution summarizes the case</li>\n<li>the defendant has an opportunity to concisely identify what the defendant intends to put into issue</li>\n<li>the prosecution introduces all of its evidence (including all of its witnesses) (and the defence has the opportunity to cross-examine each)</li>\n<li>the defendant has an opportunity to ask for a directed verdict of acquittal</li>\n<li>the defendant has an opportunity to summarize the defence case</li>\n<li>the defendant has an opportunity to introduce evidence, including witnesses (and the Crown has the opportunity to cross-examine each)</li>\n<li>either side may introduce additional evidence if needed in rebuttal</li>\n<li>prosecution's closing submissions</li>\n<li>defendant's closing submissions</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 90529,
"body": "<p>The answer by Jen is in general correct. Either side may call any witnesses who can give relevant information. It does not matter who arranged for the witness to attend. Usually the side which plans to call the witness makes arrangements. In some cases a side is bound by witnesses It has called. Each witness may be cross examined before the next is called.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"rules-of-court",
"criminal-procedure"
] |
Would I be risking being guilty of destruction of evidence any time I clear data off my computer? where are the limits?
| 4 |
https://law.stackexchange.com/questions/90516/would-i-be-risking-being-guilty-of-destruction-of-evidence-any-time-i-clear-data
|
CC BY-SA 4.0
|
<p>I've heard it claimed everyone is guilty of a crime, whether or not they realize it. As such my computer likely possesses all kind of evidence against me, even if it's mostly trivial things. Maybe I have messages with a friend where I admitted to speeding to get somewhere when I was late, or I watched something copyrighted online when I shouldn't have (or possibly didn't even realize I was circumventing copyright when I watched it), or my hypothetical child just hit puberty and waited until I went to bed to visit some of those sites a child in the throes of puberty is likely very interested in and is not legally allowed to visit.</p>
<p>The point is that likely there is some kind of evidence of crime on my, or anyone's, hard drive at some point in time, I may not even realize that the data was evidence or even that my actions were technically a crime. That means there is a non-trivial chance any time I choose to clean up my computer, delete unused data, clear my browser history, or otherwise remove what I consider to be unimportant data I may actually be destroying evidence. So when can I delete stuff from my computer without risking a crime? To give a few examples of increasingly questionable theoretical actions:</p>
<p>Assuming there was some sort of potential evidence I was unaware of is there ever a point I could have deleted it without it being criminal?</p>
<p>Do I have to be aware the data may be evidence first? If my hypothetical child clears the browser history to keep me from discovering the sort of sites the visited while I was asleep are they guilty since they knew they were destroying evidence, even though their intent was not to prevent criminal prosecution but instead to avoid revocation of internet access by me?</p>
<p>What if I know my friend visited a website that is illegal, say one for viewing copyrighted shows illegally, and I've chosen to not report him. Am I now never allowed to delete my browser history or clear its cache ever again since that would destroy something I know is evidence of my friend's crime? What if my computer has major software issues and the only viable solution is delete everything and reinstall from scratch; am I stuck with a worthless broken computer because reinstalling things from scratch would delete evidence of a crime?</p>
<p>I'm interested in the USA perspective. My home state is MD, but I would be willing to accept answers referencing any states' laws if answerer is more familiar with their own. I'm just trying to figure out where the USA generally draws the line between intentional destruction of evidence and every day digital activities.</p>
| 90,516 |
[
{
"answer_id": 90521,
"body": "<p>The relevant Maryland statute is <a href=\"https://law.justia.com/codes/maryland/2021/criminal-law/title-9/subtitle-3/section-9-307/\" rel=\"nofollow noreferrer\">MD. Criminal Law Code Ann. § 9-307 (2021)</a>, subsection (a):</p>\n<blockquote>\n<p>A person may not destroy, alter, conceal, or remove physical evidence that the person believes may be used in a pending or future official proceeding with the intent to impair the verity or availability of the physical evidence in the official proceeding.</p>\n</blockquote>\n<p>Note "that the person believes" and "with the intent to." If you have no reason to think it might be necessary in an official proceeding, you aren't violating this section. If you delete the data unintentionally or for some other reason, then you also probably are not violating the section. (I say "probably" because I'm sure there's some sort of provision for negligence or willful disregard for the evidential value of something you should know has evidential value.)</p>\n<p>As a practical matter, no copyright lawsuit or criminal trial (and criminal trials over copyright infringement are very rare) is going to depend on the browser history of the defendant's friend.</p>\n<blockquote>\n<p>What if my computer has major software issues and the only viable solution is delete everything and reinstall from scratch; am I stuck with a worthless broken computer because reinstalling things from scratch would delete evidence of a crime?</p>\n</blockquote>\n<p>If you know of evidence on the hard drive that would be destroyed, you can copy it somewhere else before deleting and reinstalling.</p>\n<p>Federal law is similar: it requires knowledge and intent. <a href=\"https://www.law.cornell.edu/uscode/text/18/1519\" rel=\"nofollow noreferrer\">18 USC 1519</a>:</p>\n<blockquote>\n<p>Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.</p>\n</blockquote>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"evidence"
] |
Can I screenshot a world map from Microsoft Bing and use it for Youtube videos?
| 1 |
https://law.stackexchange.com/questions/90455/can-i-screenshot-a-world-map-from-microsoft-bing-and-use-it-for-youtube-videos
|
CC BY-SA 4.0
|
<p>I have this nice screenshot of Microsoft Bing's map, along with the copyright mark at the bottom right corner. For the OpenStreetMap they said it clearly that I must acknowledge/credit them (<a href="https://www.openstreetmap.org/copyright" rel="nofollow noreferrer">https://www.openstreetmap.org/copyright</a>), but for the others are still unclear.</p>
<p>But can I just use it in my video and also putting the copyright text as the same as in my screenshot?</p>
<p><a href="https://i.stack.imgur.com/yhtPo.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/yhtPo.jpg" alt="enter image description here" /></a></p>
| 90,455 |
[
{
"answer_id": 90458,
"body": "<p>I don't think so. It's copyright protected, and the license is not a free one as far as I can tell. If you use openstreetmap <em>alone</em> it has a permissible license, and if you provide a copyright text the way they want it (See the openstreetmap website, but also <a href=\"https://wiki.osmfoundation.org/wiki/Terms_of_Use\" rel=\"nofollow noreferrer\">here</a>) you should be fine.</p>\n",
"score": 1
},
{
"answer_id": 90512,
"body": "<p>I think this would be covered under the <a href=\"https://www.microsoft.com/en-us/maps/product/broadcast-terms\" rel=\"nofollow noreferrer\">Bing Maps Broadcast Terms</a>.</p>\n<blockquote>\n<p>Subject to the terms of this Broadcast TOU, you may use the Imagery in the Services with television programming and the Road Maps in the Services with television programming, media and entertainment use, all free of charge.</p>\n</blockquote>\n<p>Since you're interested in imagery rather than road maps, you probably aren't permitted to use it.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"copyright-notice"
] |
Is it true that at one stage a husband could not rape his wife?
| 8 |
https://law.stackexchange.com/questions/90496/is-it-true-that-at-one-stage-a-husband-could-not-rape-his-wife
|
CC BY-SA 4.0
|
<p>Is it really true that up until relatively recently in the US a man could not rape his wife, because apparently at one point in time a married couple was considered one legal entity and a person cannot rape himself?</p>
<p>I just heard this once in passing in a YouTube video and was wondering if it was fact or fiction?</p>
| 90,496 |
[
{
"answer_id": 90498,
"body": "<p>It is true that marital rape was not recognized as a legal wrong in the United States until relatively recently (the 1970s–1990s).</p>\n<p>However, the reasoning was not that spouses were the same legal person. Rather, the reasoning was the legal fiction that by marriage, a wife provided prospective and irrevocable consent.</p>\n<p><a href=\"https://en.m.wikipedia.org/wiki/Marital_rape_in_the_United_States\" rel=\"noreferrer\">Source: Marital Rape in the United States (and the sources cited therein)</a>.</p>\n",
"score": 14
},
{
"answer_id": 90506,
"body": "<p>It's true that a husband could not be convicted of rape in relation to his wife, but women have always been protected from serious violence and physical injury by the law, so there was some limit to which force could be used - this might not be obvious today in a discussion about whether a wife could be "raped" by her husband or not.</p>\n<p>It's also worth noting that this rule existed for married couples who were already expected to be together until death, not men and women generally.</p>\n<p>It's better perceived as a policy of non-interference by the law into the interior content of marital relationships.</p>\n",
"score": 3
}
] |
[
"united-states",
"consent"
] |
Apostille document for from non-apostille countries
| 2 |
https://law.stackexchange.com/questions/21254/apostille-document-for-from-non-apostille-countries
|
CC BY-SA 3.0
|
<p>I am an indonesian marrying a Mauritian. The marriage will take place in Mauritius. To obtain my residence permit, they are asking for:</p>
<blockquote>
<p>Full Birth Certificate of applicant duly legalized/authenticated by
competent authority/ bear the seal of "Apostille" of the Hague
Convention of 5th October 1961 (where applicable).</p>
</blockquote>
<p>Indonesia is not part of the <code>Apostille Convention</code>, I'm in Indonesia, What should do, is there any other legal document I can use to replace the apostille birth certificate and where should I do this ?</p>
| 21,254 |
[
{
"answer_id": 42324,
"body": "<p>At the time of moving to another country for varying reasons, legalization of documents is required. It could be in different forms like <strong>apostille</strong> or <strong>attestation</strong>. Since Mauritius belongs to the <strong>Apostille Hague Convention</strong>, it requires your documents to obtain the <strong>apostille sticker</strong> from the concerned foreign affairs department of the nation. However, Indonesia is not a part of the <a href=\"https://www.hcch.net/en/states/hcch-members\" rel=\"nofollow noreferrer\">apostille countries</a> and hence, does not provide apostille of documents.</p>\n\n<p>In order to get the document legalization from a non-apostille country for an apostille country, the document needs to be <strong>attested from the respective embassy</strong>. In this case, the Birth Certificate authentication can be obtained from the Mauritius embassy based in Indonesia. The embassy won’t be able to provide the apostille sticker but will attest the document by providing a stamp and signature on it. This shall substitute the requirement for apostille birth certificate.</p>\n",
"score": 3
}
] |
[
"civil-legal-system"
] |
Is there any modern theory of functional law which emphasizes the purpose of a law over the implementation?
| 1 |
https://law.stackexchange.com/questions/90481/is-there-any-modern-theory-of-functional-law-which-emphasizes-the-purpose-of-a-l
|
CC BY-SA 4.0
|
<p>I was thinking about loopholes and how there can reasonably often be unintended side effects of certain laws - the specific terms of the law serve a higher-level telos, a rationale, but the law manifests itself as more precisely interpretable rules, the what, not the why; or, the how, more than the what. To give just one example, in Denmark I have been told that it is illegal to grow and possess cannabis but not to buy or sell cannabis seeds. One could imagine that the intention in general is to make cannabis a forbidden substance, particularly consumption of it as a drug. But for various reasons, perhaps unrelated to cannabis specifically, they decided it may be excessive, or unjust, or undesirable, to ban.. some associated plant structure or something that is not itself psychoactive.</p>
<p>But this slightly forced, arbitrary division between allowed and not allowed only invites weird ways of toying with or working around the law. You cannot hold a marijuana leaf in your hand, or something, but you may legally be able to unload a dump truck of cannabis seeds on a farm or in a forest, provided you did not tend to them, so as to not be guilty of having “grown” them.</p>
<p>The key point is that the intention of the law is not actually present in the law; it may be that lack of clarity, in which the law is not so straightforward, does not really say what it wants to, says it in an indirect, and hence slightly inaccurate way, which makes it less that optimally effective.</p>
<p>I was just thinking about functional programming vs declarative. I am not sure I understand it totally, but I feel like functional programming is based on a much higher level of abstraction where it becomes much more possible to state abstract intentions in an exactly precise, non-circumlocutory way.</p>
<p>It made me wonder if there is a more modern legal philosophy in which laws are not slightly antique dictations sort of like a literal reading of Moses’s 10 commandments but rather attempt to make the actual purpose the clear part and eliminate pedantic misinterpretations or legal backfiring.</p>
| 90,481 |
[
{
"answer_id": 90487,
"body": "<h2>Yes - its called <a href=\"https://en.wikipedia.org/wiki/Purposive_approach\" rel=\"nofollow noreferrer\">purposive</a> interpretation</h2>\n<p>It is the most common approach in most jurisdictions.</p>\n<p>That said, if a statute is clear and unambiguous in what it means or provides a specific definition of a term then that is what the court will apply. However, for your example of whether dumping seeds and then returning later to see if any had germinated counts as "grown" they would look to the intention of the legislature including any objective explicitly stated in the Act, committee reports, speeches in the chamber, law reform commission reports etc. to determine if the activity ios caught by the law.</p>\n",
"score": 2
},
{
"answer_id": 90488,
"body": "<p>No. Even the approach of purposive interpretation does not emphasize purpose <em>above</em> implementation. Rather, purpose is an integral part of determining what the implementation actually is.</p>\n<p>Under the purposive approach (<a href=\"https://en.m.wikipedia.org/wiki/Purposive_approach\" rel=\"nofollow noreferrer\">also called</a> the "modern principle" or "modern approach"):</p>\n<blockquote>\n<p>the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.</p>\n<p><em>Rizzo & Rizzo Shoes Ltd. (Re)</em>, [1998] 1 S.C.R. 27 at <a href=\"https://canlii.ca/t/1fqwt#par21\" rel=\"nofollow noreferrer\">para. 21</a>.</p>\n</blockquote>\n<p>There are not two separate steps of first deciding whether the words have an unambiguous meaning and <em>then</em> looking to purpose if necessary. Instead, the <em>purpose</em> of the statute is <em>part</em> or what must be considered in the single step of deciding <em>whether</em> the meaning in its full context is ambiguous:</p>\n<blockquote>\n<p>What, then, in law is an ambiguity? To answer, an ambiguity must be “real”. The words of the provision must be “reasonably capable of more than one meaning”. By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. ... “It is only when genuine ambiguity arises between two or more plausible readings, <strong>each equally in accordance with the intentions of the statute</strong>, that the courts need to resort to external interpretive aids”, to which I would add, “including other principles of interpretation” [in this case, the principle of lenity, or strict construction].</p>\n<p><em>Bell ExpressVu Limited Partnership v. Rex</em>, <a href=\"https://canlii.ca/t/51s6\" rel=\"nofollow noreferrer\">2002 SCC 42</a>.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"theory-of-law"
] |
Would it be theoretically possible to design a 100% legal ransomware where the user voluntarily chooses to encrypt their files and pay to decrypt them
| 0 |
https://law.stackexchange.com/questions/90485/would-it-be-theoretically-possible-to-design-a-100-legal-ransomware-where-the-u
|
CC BY-SA 4.0
|
<p>Would it be theoretically possible to design a 100% legal ransomware where the user voluntarily chooses to encrypt their files and pay to decrypt them? (Seriously, I always wondered if it was possible!) For example, the software would have to be voluntarily downloaded by the user, and it is clear to the user on the download website in large text that the program is ransomware. The website might say in large text on the home page, "This program locks your files and forces you to pay us with real money to get them back! Make yourself and your wallet sad, and try our ransomware today!" The terms and conditions when the program is being installed would clearly state to the user in large text that their files are about to be encrypted, and they will have to pay to get them back. The price would be set by the user before the files are encrypted. This hypothetical 100% legal program would see hypothetical users who act like Patrick from <em>SpongeBob SquarePants</em>.</p>
<p>Please note that I'm not going to do this, nor do I encourage this behaviour, but I am curious as if it is legal. I know nobody in real life would be dumb enough to voluntarily install ransomware on their computer!</p>
| 90,485 |
[
{
"answer_id": 90486,
"body": "<p>It is not necessary to design anything (program design is outside the scope of Law SE, anyhow). It is legal to pay a person to encrypt your drive with BitLocker. It is legal to instruct them, as part of the contract, to not reveal the key to you, until you complete your contractual obligation (paying the fee that constitutes your consideration under the contract). The contract could immunize the encryptor against liability for the drive-owner wising up moments after enter is pressed.</p>\n",
"score": 3
}
] |
[
"software"
] |
Is cross examination strictly confined to the subjects that the original examination pertained to, or can the opposing party make their own points?
| 9 |
https://law.stackexchange.com/questions/90449/is-cross-examination-strictly-confined-to-the-subjects-that-the-original-examina
|
CC BY-SA 4.0
|
<p>Pretty straightforward question, really: what are the topical constraints of cross examination with reference to examination?</p>
<p>Suppose party A calls witness W to the stand to ask them questions about the alleged motive and means for the crime.</p>
<p>Party B now cross examines W but would like to use the opportunity to raise points rather about W’s whereabouts and possible alibi so the questions B would ask W in CE actually have nothing to do with those asked of W by A shortly before. Are they nonetheless allowed?</p>
| 90,449 |
[
{
"answer_id": 90451,
"body": "<p>On cross-examination <em>any</em> relevant questions can be asked.</p>\n<p>It is re-examination that is confined to clarifying whatever new questions/issues were raised during cross.</p>\n",
"score": 13
},
{
"answer_id": 90484,
"body": "<p>Counsel can ask relevant questions on cross. However, what was asked in direct can be a factor as to what is considered "relevant" on cross, so there are situations where what can be asked on cross is dictated by direct. For instance, if a party wants to ask a witness how old their children are, that question is much more likely to be allowed as relevant if the other party already asked the witness questions about their children. Asking a witness about their possible alibi is quite likely to not be allowed if a foundation hasn't been laid, but the question of foundation is present in both direct and cross.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"rules-of-court",
"trial",
"cross-examination"
] |
Conflict Between Third Circuit and NJ Appellate Division Regarding Stay Pending Appeal?
| 1 |
https://law.stackexchange.com/questions/90478/conflict-between-third-circuit-and-nj-appellate-division-regarding-stay-pending
|
CC BY-SA 4.0
|
<p><a href="https://www.njcourts.gov/attorneys/rules-of-court/control-appellate-court-proceedings-pending-appeal-or-certification" rel="nofollow noreferrer">NJ Rule 2:9:1</a> states:</p>
<blockquote>
<p>When an appeal is taken from an order compelling or denying
arbitration, <strong>the trial court shall retain jurisdiction</strong> to address
issues relating to claims and parties that remain in that court unless
otherwise ordered by the appellate court possessing supervision and
control</p>
</blockquote>
<p>How is this rule consistent with the ruling by the Third Circuit in Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207 (3d Cir. 2007)?</p>
<p>In the above case, the Third Circuit noted the existence of “a circuit split on the question of whether the filing of an interlocutory appeal pursuant to Section 16(a) of the FAA automatically deprives the trial court of jurisdiction to proceed until such time as the appeal is fully litigated or determined to be frivolous or forfeited,” and “expressed agreement with the majority rule of <strong>automatic divestiture</strong> where the Section 16(a) appeal is neither frivolous nor
forfeited.”</p>
<p>Isn't the the Appellate Division in NJ required to uphold the ruling of the Third Circuit in such matters?</p>
| 90,478 |
[
{
"answer_id": 90483,
"body": "<blockquote>\n<p>Isn't the the Appellate Division in NJ required to uphold the ruling\nof the Third Circuit in such matters?</p>\n</blockquote>\n<p>It is not.</p>\n<p>There can be no conflict on procedural issues between the Third Circuit, which is interpreting federal rules of civil and appellate procedure, and a ruling of a New Jersey court which is interpreting state rules of civil and appellate procedure.</p>\n<p>Different court systems have different procedural rules. Federal rules of procedure are inapplicable in state courts. State rules of procedure are inapplicable in federal courts.</p>\n<p>The circuit split referred to is between different federal appellate court circuits interpreting the federal rules of civil and appellate procedure. But none of those rules are applicable to state courts.</p>\n<p>Furthermore, even if a question of substantive federal law were involved, the state courts of New Jersey are only required to follow precedents of the U.S. Supreme Court and higher appellate courts in the New Jersey state court system.</p>\n<p>Decisions of the Third Circuit on questions of federal law are not binding on the courts of New Jersey despite the fact that New Jersey is located in the Third Circuit, even though they are persuasive authority on questions of substantive federal law that are equally applicable in both court systems.</p>\n",
"score": 4
}
] |
[
"united-states",
"new-jersey"
] |
What specific laws govern ownership of food in restaurants, and any terms or obligations under which a person can have, take, or eat it?
| -4 |
https://law.stackexchange.com/questions/90470/what-specific-laws-govern-ownership-of-food-in-restaurants-and-any-terms-or-obl
|
CC BY-SA 4.0
|
<p>This question partially builds off of some of the ideas in here: <a href="https://law.stackexchange.com/questions/5100/what-terms-surround-a-restaurant-order">What terms surround a restaurant order?</a></p>
<p>But my question is more specifically:</p>
<ul>
<li>is food in a restaurant considered “property”, owned by the legal entity that is the restaurant? Does it have identical ownership status or attributes as any other kind of ownership, such as owning a car, housing, clothing, computer, etc.?</li>
<li>The answer above talks about contract law, specifically regarding verbal contracts. I was wondering what exact law and passages of that law specify the terms of the contract, when you buy food in some establishment. Does anyone know the exact conditions or criteria regarding it, like, at what point does the intention to buy food become a contract? What are its requirements?</li>
<li>I am specifically most interested in the idea of walking into a cafe and eating food from a glass display case without paying for it; what relevant conditions could influence the legality. For example, what if the person working there never significantly protests you doing so? To what extent can verbal contracts be implicit, like it possibly seemed that the person working there gave you approval? Also, if food is property, what is the penalty for theft of something worth $2-$5?</li>
</ul>
| 90,470 |
[
{
"answer_id": 90479,
"body": "<blockquote>\n<ul>\n<li>is food in a restaurant considered “property”, owned by the legal entity that is the restaurant? Does it have identical ownership status or attributes as any other kind of ownership, such as owning a car, housing, clothing, computer, etc.?</li>\n</ul>\n</blockquote>\n<p>The Restaurant as an entity owns the food, it is property. The Restaurant is represented by its employees (agents). It is the very same type of ownership as the Restaurant has of its utensils and tools.</p>\n<blockquote>\n<ul>\n<li>The answer above talks about contract law, specifically regarding verbal contracts. I was wondering what exact law and passages of that law specify the terms of the contract, when you buy food in some establishment. Does anyone know the exact conditions or criteria regarding it, like, at what point does the intention to buy food become a contract? What are its requirements?</li>\n</ul>\n</blockquote>\n<p>The order is a contract that the Customer will pay the Restaurant for the items they tell the waiter. That is a verbal contract between the Customer and the Restaurant. Which exact law from the massive body of law that is <a href=\"/questions/tagged/contract-law\" class=\"post-tag\" title=\"show questions tagged 'contract-law'\" aria-label=\"show questions tagged 'contract-law'\" rel=\"tag\" aria-labelledby=\"tag-contract-law-tooltip-container\">contract-law</a> applies varies a lot by jurisdiction.</p>\n<p>The contract is formed by the <em>meeting of the minds</em>. For example, the Customer states "I want that cheesecake from the menu" (advertised for some price), and the waiter as a representative of the Restaurant informs him he can have it. At that moment, the contract is binding for both parties.</p>\n<blockquote>\n<ul>\n<li>I am specifically most interested in the idea of walking into a cafe and eating food from a glass display case without paying for it; what relevant conditions could influence the legality. For example, what if the person working there never significantly protests you doing so? To what extent can verbal contracts be implicit, like it possibly seemed that the person working there gave you approval? Also, if food is property, what is the penalty for theft of something worth $2-$5?</li>\n</ul>\n</blockquote>\n<p>That is super simple: without ordering, or paying when told to do so by employees, you commit <strong>theft</strong> (or it's variant <em>petty theft</em>). That is a criminal act, in which you deprive the Restaurant of its property. The restaurant also can sue you for <strong>conversion</strong> of the value, because you did not pay.</p>\n<p>The non-protest of the Restaurant employee does not alter the picture, it's still theft and conversion. Inaction is not approval.</p>\n<p>Incidentally, the punishment for stealing a low-value item might be much higher than the item's value: I was told by a german lawyer, that he had once been told of a case in which a notorious thief had just gotten out of a hearing if he should be put in jail for repeatedly stealing small items. He had begged for mercy and was allowed to go on probation. Just after he left the courthouse he crossed the street and stole chewing gum from a shop located there and was busted by a cop. The value of the chewing gum was about 1 euro, but he was given a multiple-year jail time for violation of probation and theft - which is equivalent to at least a 4-digit number fine.</p>\n",
"score": 1
}
] |
[
"contract-law",
"restaurants"
] |
Are designs explained in academic publications considered to be in public domain if there isn't yet a patent application about it?
| 5 |
https://law.stackexchange.com/questions/90430/are-designs-explained-in-academic-publications-considered-to-be-in-public-domain
|
CC BY-SA 4.0
|
<p>In academic journals, sometimes the new approach they describe seems so promising that companies may want to use those designs or designs made/inspired from the principles mentioned in the publication. When an invention is publicly displayed, it loses its novelty and hence cannot be considered as patentable. My question is: is an academic journal publication considered a public display of information or isn't considered so depending on the publication being an open-access one or not?(Is there any difference whether the publication is accessible through a subscription based journal - which limits the audience and hence may limit the public display criteria - or a blog on the internet?) If a design isn't patented, do companies have the right to use these designs presented in journals? Thank you,</p>
| 90,430 |
[
{
"answer_id": 90431,
"body": "<h2>Designs in publications are prior art</h2>\n<p>If a party publishes a design in any way <em>to the public</em>, no other party can patent it and the publishing party only has a narrow window to file for a patent if the jurisdiction even allows for that.<sup>1</sup> However, a publication of the underlying material <strong>doesn't invalidate a previous patent.</strong> In fact, requesting a patent requires disclosure and publication.</p>\n<p>Academic publications do count as a publication of the mechanism and are grounds to void a patent filed after the publication date.</p>\n<hr />\n<p>1 - In the US, there is a general timeframe for that, in other jurisdictions, such a timeframe is only given if the publication was to acquire a patent in a different country.</p>\n",
"score": 13
},
{
"answer_id": 90432,
"body": "<blockquote>\n<p>Is an academic journal publication considered a public display of\ninformation or isn't considered so depending on the publication being\nan open-access one or not? (Is there any difference whether the\npublication is accessible through a subscription based journal - which\nlimits the audience and hence may limit the public display criteria -\nor a blog on the internet?)</p>\n</blockquote>\n<p>A publication in a closed access journal is still a public display of information that prevent an idea from being patented (i.e. the closed access journal article is "prior art" for patent law purposes once it is published). Closed access v. open access is irrelevant for this purposes.</p>\n<p>Blogs and closed access subscription only journals have the same legal effect at prior art, at least in so far as members of the general public or some other large group of people may subscribe to the journal if they wish.</p>\n<p>A newsletter limited to internal use among members of the same collaborative laboratory or workshop (with its own confidentiality protocols) that is seeking the patent might not count as prior art because that is really just a communication among the multiple patent authors, rather than a release of information to anyone else.</p>\n<blockquote>\n<p>If a design isn't patented, do companies have the right to use these\ndesigns presented in journals?</p>\n</blockquote>\n<p>I would state less ambitiously that if the design has been published that it wouldn't infringe the patent rights of anyone who does not have a patent of the design prior to its publication.</p>\n<p>It could be, for example, that the design would actually infringe upon an existing patent that remains in force and was established before the journal published the design, if it was used. Merely publishing a design for aqn invention that would be infringing if it were actually manufactured is not itself patent infringement.</p>\n<p>There could conceivably be other reason that the design couldn't be used (e.g. it violates a safety or health regulation).</p>\n",
"score": 8
}
] |
[
"copyright",
"intellectual-property",
"patents",
"public-domain",
"academia"
] |
broker cancelled life insurance policy without authorization
| 7 |
https://law.stackexchange.com/questions/90461/broker-cancelled-life-insurance-policy-without-authorization
|
CC BY-SA 4.0
|
<p>Back in 2018 we had a life insurance policy that was set up in 2007, we were selling our house and buying another, our broker wanted to make sure we were covered as we were taking on a bigger debt. She advised to keep the old policy because it was excellent and take out what she called a top up policy. We agreed and this is what we thought was set up. 2023 comes along and we are remortgaging - was advised to take another look at our policies. In turn we have discovered she replaced the old policy for the new one and we have been covered for a lot less than we thought for 5 years. We are tying to determine what an acceptable compensation would be!</p>
| 90,461 |
[
{
"answer_id": 90474,
"body": "<blockquote>\n<p>We are tying to determine what an acceptable compensation would be</p>\n</blockquote>\n<p>It mostly depends on whether the acts and representations by the broker caused you to pay in excess and/or have made it more expensive for you to restore your previous insurance plan. The gaps in your description prevent us from identifying whether your claim(s) against the broker is (are) meritorious from other standpoints.</p>\n<p>The broker's advice to buy additional insurance suggests that since 2018 you must have paid more than you used to. In that case, you would be entitled to recover from the broker the excess over the premium paid for the insurance you actually had after the old policy got replaced. In England the statute of limitations for claims of breach of contract is six years. This implies that delaying legal action for another year will reduce the amount to which you are entitle to recover.</p>\n<p>If insurance similar to the old, "excellent" policy now costs you more than it would had the broker never replaced it, you might be entitled to that difference as well. That is because the broker advised you something and she did the opposite, thereby unjustifiably worsening your position.</p>\n",
"score": 8
},
{
"answer_id": 90466,
"body": "<p>If you had died there might be something here, but as long as you were only charged for the lower amount, an appropriate remedy would be back-dating a new larger policy based on your previous age. You haven't been harmed.</p>\n",
"score": 3
},
{
"answer_id": 90477,
"body": "<h2>This was your decision</h2>\n<p>I have no doubt that this was what was discussed and that you believe you told the broker to retain the old policy. However, that’s not what happened and what did happen, happened by your actions - you had to sign the paperwork. Which means, in the eyes of the law, you read and understood everything you signed.</p>\n<p>So, from a legal point of view, the broker made the suggestion but you chose not to follow it.</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"england-and-wales",
"liability",
"insurance",
"advice"
] |
Is a contract valid with totally wrong last name and wrong project address?
| -1 |
https://law.stackexchange.com/questions/90438/is-a-contract-valid-with-totally-wrong-last-name-and-wrong-project-address
|
CC BY-SA 4.0
|
<p>Is a contract valid with the wrong last name? I had a contractor come and do some work on a barn. He said that he would do good work use different products. In the end, he did not use the products and did poor quality work.</p>
<p>I asked him for a detailed contract. What he brought me had a sentence or two on the work. The rest was just stuff about payment and such. The contract had my first name correct, but he had gotten part of my email address and used that as my last name. Also, he had the address of the project as the address across the street as my property has no official address.</p>
<p>I signed the contract with a carpenter's pencil quite poorly and am not sure if anyone could read it. I trusted the guy as he is part of Isiah House, a rehabilitation charity. I am unhappy with the work and he does not want to do anything about it. The contract says I have 30 days to pay. He wants the money now.</p>
<p>I just recently received a copy of the contract after asking for it after the work was done. I never have been involved in contract litigation. Is the contract considered valid and binding with a totally wrong last name and a wrong project address?</p>
| 90,438 |
[
{
"answer_id": 90439,
"body": "<p>Ah, the old "is this contract invalid (but still legally binding for the other party)"?</p>\n<p>You signed a contract with someone else. You do not dispute that it was you who signed the contract and agreed to it. You made it abundantly clear that there was a contract between you when you allowed him to do the work. This means one of the following was true:</p>\n<ul>\n<li>There was a mistake in the contract. What was followed was how it was intended.</li>\n<li>You signed a contract containing false information in an attempt to defraud someone.</li>\n</ul>\n<p>One of these will end up much worse for you.</p>\n<p>The fact that the work was not completed to the agreed upon standard could be considered a breach of contract- this is something a small claims court would decide.</p>\n",
"score": 6
},
{
"answer_id": 90441,
"body": "<blockquote>\n<p>would like to know if the contract is considered valid and binding with a totally wrong last name and a wrong project address?</p>\n</blockquote>\n<p>The contract you describe is valid to the extent that it contains enough information to ascertain who the intended parties are as well as the purpose of the contract.</p>\n<p>The contractor is not entitled to strike the deadline of payment. But unless you can prove what you two agreed in other communications, the terms of the "detailed" contract would be compared to what the contractor actually did. If those terms are too vague, the dispute would be decided on the basis of "common practice".</p>\n",
"score": 1
}
] |
[
"contract-law"
] |
What happens with seized money?
| 1 |
https://law.stackexchange.com/questions/90456/what-happens-with-seized-money
|
CC BY-SA 4.0
|
<p>Daniel the drug dealer was caught with 20.000€ of illegaly earned money while crossing the border into Switzerland. The money was covered in traces of all kinds of drugs, so the court did not believe any of his stories about where he got the money from (also, cash in excess of 10.000€ must be declared when crossing the border, as a measure against tax evasion). The court found him guilty of drug dealing, attempted money laundering and similar crimes and charged him with a fine of 1000Fr, plus court fees.</p>
<p>But what happens with the seized money? I can think of several options:</p>
<ul>
<li>It is returned to Daniel, deduced by the fine. (Unlikely, because in this case, the crime would have been worth it, as the fine is significantly lower than the cash earned)</li>
<li>The money is destroyed by the court (Destroying money is illegal in itself, though)</li>
<li>The money becomes property of the state (Sounds a bit weird, as this would make the state benefit from a crime)</li>
</ul>
| 90,456 |
[
{
"answer_id": 90476,
"body": "<h2>The money is forfeited to the state</h2>\n<p>This would normally be the case even if Daniel is acquitted. The proceeds of crime may be seized using forfeiture rules which require Daniel to prove that the suspect money is legitimate.</p>\n",
"score": 3
}
] |
[
"search-and-seizure",
"switzerland",
"money-laundering"
] |
Are there any opportunities to Socratically question an opposing counsel on their legal arguments in a civil trial?
| 0 |
https://law.stackexchange.com/questions/90450/are-there-any-opportunities-to-socratically-question-an-opposing-counsel-on-thei
|
CC BY-SA 4.0
|
<p>According to this answer,</p>
<p><a href="https://law.stackexchange.com/a/90414/48046">https://law.stackexchange.com/a/90414/48046</a></p>
<p>Opposing counsel was called as a witness for examination in the American scopes trial.</p>
<p>Is such a practice allowed in English trial practice? Concerns here that come to mind:</p>
<p>Must a witness have previously filed a witness statement per se if they are to be called to the stand? Opposing counsel nonetheless will be physically present and available at the trial, AND will have drafted/submitted case presentation or argument outlines to the court on which they may be questioned.</p>
<p>If not, are there any other techniques which may be employed to be able to achieve this sort of direct dialogue wherein the coherence/integrity of the opposing counsel’s legal arguments may be challenged?</p>
| 90,450 |
[
{
"answer_id": 90475,
"body": "<h2>What would be the point?</h2>\n<p>Legal arguments are not made in front of the jury or the witness. Nor are they made on oath.</p>\n<p>They are made to the judge who hears the position of both sides and can ask questions if they want. Normally, the discussion is polite and relatively free-flowing. The judge may put forward their own view of the law. They may consult statute books or query case law to sort it out then and there.</p>\n<p>If it’s really complicated, the judge may call for written submissions citing authorities and may call an adjournment while that happens, or they may excuse the current witness and come back to them when the matter is resolved.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"civil-procedure",
"rules-of-court",
"trial",
"civil"
] |
How do lower level (county or magistrates) courts in the City of London differ in their jurisdictions from those in the surrounding boroughs?
| 3 |
https://law.stackexchange.com/questions/90395/how-do-lower-level-county-or-magistrates-courts-in-the-city-of-london-differ-i
|
CC BY-SA 4.0
|
<p>Because the City of London has certain aspects of municipal autonomy, are there restrictions on their equivalence with the rest of the county or magistrate court system? In general any county court can hear or even transfer cases between one another. Does this differ at all for City of London located courts?</p>
<p>Similarly if the nearest magistrate’s court to the location of a crime is in the City of London, but the crime scene itself is just without, does this have any implications on the magistrate’s court in which the crime can be prosecuted?</p>
| 90,395 |
[
{
"answer_id": 90420,
"body": "<p>There is currently no difference, but there have been substantial differences in the past.</p>\n<p>Since the <a href=\"https://www.legislation.gov.uk/ukpga/1971/23/section/42/enacted\" rel=\"noreferrer\">Courts Act 1971 (specifically s.42)</a>, the City of London has had its own county court that is on the same basis as other county courts. It is called "The Mayor's and City of London Court" for historical reasons, as that was the name of the court that was the previous closest equivalent. The 1971 Act establishes that the new version of the court has the same jurisdiction as any other county court, thus taking away any special privileges which the old version had. It was already <em>almost</em> like a county court by virtue of the City of London (Courts) Act 1964. Moreover, since the Crime and Courts Act 2013, there are no longer separate county courts, but one enormous one that sits in several places. That includes the City of London location.</p>\n<p>In criminal matters, the Crown Court (established under the same 1971 Act) is logically also one enormous court. When it sits in the City of London, it is known as the "Central Criminal Court" (<a href=\"https://www.legislation.gov.uk/ukpga/1981/54/section/8\" rel=\"noreferrer\">Senior Courts Act 1981, s.8(3)</a>), but is still the same court. It does not have any special status with respect to the City, being meant to handle cases from all of Greater London as well. Formerly, it had to operate a complex system of separate juries for City cases, but nowadays that is all uniform.</p>\n<p>For magistrates' courts, the <a href=\"https://www.legislation.gov.uk/ukpga/2003/39\" rel=\"noreferrer\">Courts Act 2003</a> created a single jurisdiction for all of England and Wales. That is divided into "local justice areas", one of which is the City of London - these replace the old "petty sessional divisions". There are no special rules for the City. Applying the general rules for a particular criminal case would result in it being dealt with in the place where the offence is alleged to have happened, or where the accused lives, or where the witnesses mostly live, or "where other cases raising similar issues are being dealt with" (s.30(5)(d)).</p>\n<p>Perhaps soon, powers under the <a href=\"https://www.legislation.gov.uk/ukpga/2022/35/contents\" rel=\"noreferrer\">Judicial Review and Courts Act 2022</a> will be exercised to abolish local justice areas (s.45), enabling even more flexibility with the assignment of cases to courts. In particular, this is meant to make it easer to shift cases around depending on local workload, or on which court location is genuinely most convenient in all the circumstances. The Act also removes (ss. 46 and 47) the current special rules about the City of London court <em>premises</em> being provided by the City authorities, rather than by the Ministry of Justice which handles all the other ones.</p>\n<p>Formerly, there have been plenty of law courts for the City, or its livery companies, or St Paul's Cathedral (the consistory court had criminal jurisdiction over clergy), or the "compters" (debtors' prisons). Some of these still exist in a ceremonial capacity but do not function as courts. For example, the aldermen of the City can meet as the "Court of Husting", which was formerly a functioning law court but nowadays has the sole purpose of enrolling certain deeds, and hasn't done <em>that</em> since 1978. There are still two Sherriffs, nominally associated with the Poultry Compter and Wood Street Compter, but their courts have not existed since 1867. Some of the City's officers have residual ceremonial connections with the Old Bailey or other institutions, but these have no practical impact on the work of the courts.</p>\n",
"score": 6
}
] |
[
"england-and-wales",
"court",
"jurisdiction",
"city-of-london"
] |
What sorts of “necessities” could married women enter contracts for?
| 2 |
https://law.stackexchange.com/questions/90401/what-sorts-of-necessities-could-married-women-enter-contracts-for
|
CC BY-SA 4.0
|
<p>A <a href="https://law.stackexchange.com/a/22642/48046">recent answer by @Ohwilleke</a> on the historical status of married women lists the limited types of contracts they could enter into.</p>
<p>One of these of those for necessities. What is referred to by this?</p>
| 90,401 |
[
{
"answer_id": 90417,
"body": "<h2>The same sorts of necessities children can enter contracts for</h2>\n<p>Necessities means pretty much what you’d think it means - the things that are necessary to maintain your life and lifestyle. So, food, clothing, shelter, utilities, entertainment, transport, education etc. all appropriate to the person’s economic circumstances - bus fare for a poor person, chauffeur drive limousines for the super wealthy.</p>\n",
"score": 1
}
] |
[
"contract-law",
"england-and-wales",
"marriage",
"legal-history",
"converture"
] |
Overcoming a presumption of guilt
| 1 |
https://law.stackexchange.com/questions/90447/overcoming-a-presumption-of-guilt
|
CC BY-SA 4.0
|
<p>Give the legal adage "innocent until proven guilty", would a requirement by the state to overcome a presumption of guilt only by signing, under penalty of perjury, a "declaration of non-responsibility" form be considered illegal or unconstitutional?</p>
<p>(The context is a traffic camera.)</p>
| 90,447 |
[
{
"answer_id": 90464,
"body": "<p>In the US, the burden of proof in a civil case is distinct from that in a criminal case (it is true that in European systems, the plaintiff must prove their claims beyond reasonable doubt, but we're talking about US law here). The particular statute, <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=46.63&full=true\" rel=\"nofollow noreferrer\">RCW 46.63.075</a>, does somewhat favor the state as plaintiff, stating that the automatic camera evidence</p>\n<blockquote>\n<p>constitutes in evidence a prima facie presumption that the registered\nowner of the vehicle was the person in control of the vehicle at the\npoint where, and for the time during which, the violation occurred.</p>\n</blockquote>\n<p>The law further states that</p>\n<blockquote>\n<p>This presumption may be overcome only if the registered owner states,\nunder oath, in a written statement to the court or in testimony before\nthe court that the vehicle involved was, at the time, stolen or in the\ncare, custody, or control of some person other than the registered\nowner</p>\n</blockquote>\n<p>which means filling out a form like <a href=\"https://www.seattle.gov/documents/Departments/Court/Court%20Forms/71-014DeclarationofNonResponsibility03-2022.pdf\" rel=\"nofollow noreferrer\">this</a>. The form itself is plainly not illegal in any sense, the question is whether RCW 46.63.075 is in some sense illegal. This being a civil matter, guilt / innocence are irrelevant, and the burden of proof is not strongly on the plaintiff (the government). It is entirely legal for there to be a evidentiary presumption, as long as the presumption is defeasible. There could be a legal problem if it was impossible to satisfy the requirements for disproof, for instance if the condition was "upon order from the US Supreme Court". A requirement to appear in Lester municipal court within 1 hour would be practically impossible to satisfy.</p>\n<p>A particular form might be "illegal" in the sense of not correctly stating the requirements of RCW 46.63.075, though again that just means that you have to appear in court to state the statutorily required fact rather than mailing in a form. That form seems to go somewhat beyond the requirement of the law in requiring all registered owners to sign the form when the statute refers to "the registered owner", but state law allows vacillation between singular and plural in interpreting laws, if required to make sense.</p>\n<p>Bear in mind that RCW 46.63.075 only addresses the question of identifying the infractor, since in other moving infractions the officer can personally testify as to identity. You are still entitled to proffer other defenses such as that the camera does not prove that the alleged vehicle was involved. The one question worth considering is whether the form offers a false trichotomy, since there are other "it wasn't me" scenarios imaginable. For example, suppose you can prove that you were out of the country at the time and you don't know how the vehicle cam to be in that situation. You could check the "stolen" and "under other's control" boxes. There is no requirement that you additionally provide proof of the statement, you just have to make the statement.</p>\n<p>If you actually know that the car was not under the control of another (stolen or otherwise), signing the statement is criminal perjury. The state would have to prove that you knew that the statement was false, which they could do if they can prove through some other means that you were driving <em>and</em> if they can prove your state of mind (not sleep-driving, not having an alternative personality, not simply forgetful). You are correct that there is no requirement in Washington to know at all times who is driving your vehicle.</p>\n<p>The legislature deliberately passed a specific law that limits what would be an otherwise valid common law right to refute an argument for liability (to require the plaintiff to offer evidence). In addition, the legislature actually made it illegal for the government to provide better evidence out of privacy concerns, since under\n<a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=46.63.170\" rel=\"nofollow noreferrer\">RCW 46.63.170</a>, the photo evidence <em>cannot</em> include the face of the driver.</p>\n",
"score": 2
}
] |
[
"us-constitution",
"washington",
"due-process"
] |
Can Police legally search inside apartment residences for a suspect without a warrant and without consent?
| -2 |
https://law.stackexchange.com/questions/90158/can-police-legally-search-inside-apartment-residences-for-a-suspect-without-a-wa
|
CC BY-SA 4.0
|
<p>A <a href="https://youtu.be/8_Ar5JldLBU?t=281" rel="nofollow noreferrer">video</a> of the incident. Timestamped to when they begin surrounding the apartment for brevity.</p>
<p>Jan 4th 2022 The Miami Police department was searching for 2 suspects involved with grand theft auto and credit card theft. They find one and believed they chased the other into a small apartment complex. Police surround the complex and proceed to knock on doors, ordering the residents out of their apartments to search for the suspect. They later find the suspect walking around outside.</p>
<p>Can Police lawfully order all the residents out of their apartments in search of the remaining suspect or would anyone resistant to these orders be in their legal right to deny the order?</p>
| 90,158 |
[
{
"answer_id": 90226,
"body": "<p>The Supreme Court has ruled that warrentless searches may be made under certain defined <a href=\"https://en.wikipedia.org/wiki/Exigent_circumstance\" rel=\"nofollow noreferrer\">exigent circumstances</a> which include imminent danger to the public, imminent destruction of evidence, immense escape of a suspect, or in the case of rendering emergency aid. These do not violate the 4th amendment protections under the Constitution, because the probable cause for a warrant clearly exists, however the warrant process will significantly delay the appropriate response. In such circumstances, any evidence in plain view can be seized and they would not be permitted to search areas where no reasonable person would think to look for them (so if they came in looking for a fleeing suspect, they could not search your closed sock drawer).</p>\n<p>While OP did say the complex was small, they didn't specify how many units were accessed in this way, but I would gather that they visually checked only the ones they beleived that the suspect could have entered. This would qualify as exigent circumstances at the time, as the suspect could potentially be armed, forcing residents to let him in under threats of violence, or lawfully reside in the complex, which presents an imminent threat to public safety AND is a suspect who police are actively pursuing.</p>\n<p>The fact that the police were wrong does not change the math because this is based on facts available at the time. On could even argue that the suspect became aware of the door to door search, at which point, he fled his hiding spot in the complex, which lead to his arrest.</p>\n",
"score": 0
}
] |
[
"united-states",
"police",
"florida"
] |
Under what circumstance is it a crime if a car owner allows someone other than themself to drive their car?
| 13 |
https://law.stackexchange.com/questions/90397/under-what-circumstance-is-it-a-crime-if-a-car-owner-allows-someone-other-than-t
|
CC BY-SA 4.0
|
<p>In a New Hampshire "driving law test" that I have, there is a question "Under what circumstance is it a crime if a car owner allows someone other than themself to drive their car?" What is the relevant statute if any?</p>
| 90,397 |
[
{
"answer_id": 90398,
"body": "<h2><a href=\"https://www.gencourt.state.nh.us/rsa/html/XXI/263/263-1-a.htm\" rel=\"noreferrer\">TITLE XXI Section 263:1-a</a></h2>\n<blockquote>\n<p><strong>263:1-a Allowing an Improper Person.</strong> – No person shall knowingly permit a motor vehicle owned or controlled by him to be driven by a person who is not properly licensed or otherwise entitled to drive. Any person who violates this section shall be guilty of a violation, and if the license or driving privilege of the person allowed to drive is under suspension or revocation, the owner or person in control of the vehicle, notwithstanding title LXII, shall be fined not less than $100.</p>\n</blockquote>\n<p>I would also hazard that allowing someone to use your vehicle knowing they intend to commit a crime would make you an accessory but I don’t think that’s the answer they’re looking for here.</p>\n",
"score": 24
}
] |
[
"driving",
"new-hampshire"
] |
In a civil trial, can a party “call” its opponent’s witnesses in making its case?
| 8 |
https://law.stackexchange.com/questions/90392/in-a-civil-trial-can-a-party-call-its-opponent-s-witnesses-in-making-its-case
|
CC BY-SA 4.0
|
<p>I mean, as opposed to merely cross-examining them in the course of the opposing side’s presentation of their case.</p>
<p>A closely related question asks of calling the defendant itself, though not its witnesses.</p>
| 90,392 |
[
{
"answer_id": 90394,
"body": "<p><a href=\"/questions/tagged/ontario\" class=\"post-tag\" title=\"show questions tagged 'ontario'\" aria-label=\"show questions tagged 'ontario'\" rel=\"tag\" aria-labelledby=\"tag-ontario-tooltip-container\">ontario</a></p>\n<p>Any party may call a witness that has relevant evidence (Rules <a href=\"https://www.ontario.ca/laws/regulation/900194#BK495\" rel=\"nofollow noreferrer\">53.01</a> & <a href=\"https://www.ontario.ca/laws/regulation/900194#BK498\" rel=\"nofollow noreferrer\">53.04</a>). There is "<a href=\"https://www.lerners.ca/lernx/expert-advice-series-no-property-in-a-witness-how-our-courts-are-applying-this-principle-to-expert-witnesses/\" rel=\"nofollow noreferrer\">no property in a witness</a>" (see also <em>Unifirst Canada Ltd. c. 9766065 Canada inc.</em>, <a href=\"https://canlii.ca/t/jhxwd#par10\" rel=\"nofollow noreferrer\">2021 QCCQ 7946 at para. 10</a>). The adverse party may be called as a witness unless they've already testified or counsel has <a href=\"https://en.m.wiktionary.org/wiki/undertake\" rel=\"nofollow noreferrer\">undertaken</a> to have them appear as a witness in their case (Rule <a href=\"https://www.ontario.ca/laws/regulation/900194#BK501\" rel=\"nofollow noreferrer\">53.07</a>).</p>\n",
"score": 11
},
{
"answer_id": 90414,
"body": "<p>Clarence Darrow took the unusual step of <a href=\"https://en.wikipedia.org/wiki/Scopes_trial#Examination_of_Bryan\" rel=\"nofollow noreferrer\">calling the prosecution counsel as a witness during the Scopes Trial</a>.</p>\n",
"score": 4
}
] |
[
"england-and-wales",
"civil-procedure",
"litigation"
] |
Why is the Declaration of Independence not held as legally binding, under Art VI, cl I, of the U.S. Constitution?
| 8 |
https://law.stackexchange.com/questions/90418/why-is-the-declaration-of-independence-not-held-as-legally-binding-under-art-vi
|
CC BY-SA 4.0
|
<p>The Declaration of Independence was used as an instrument to approach foreign countries and interact on the world stage, prior to winning the Revolutionary War. Therefore, it was the ground on which the Confederation established loans, which were used to fund the war. As such, should it not be as valid, as the debts, for which it was used establish?</p>
| 90,418 |
[
{
"answer_id": 90419,
"body": "<p>The declaration contains only one passage that purports to have legal effect:</p>\n<blockquote>\n<p>We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, That these United Colonies are, and of right ought to be, Free and Independent States; that they are absolved from all allegiance to the British crown, and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as Free and Independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do.</p>\n</blockquote>\n<p>There are no credible challenges to any of this, so the question of whether it formally has legal force is not particularly consequential.</p>\n<p>The passage at the beginning concerning rights of life, liberty, and the pursuit of happiness, among other concepts, is prefatory material serving to justify the colonies' claimed right to independence. In other words, it establishes the colonies' authority to make the declaration quoted above. It has no legal force in part because it does not purport to have legal force.</p>\n",
"score": 17
},
{
"answer_id": 90440,
"body": "<p>The Declaration of Independence was succeeded by the Articles of Confederation, which were succeeded by the Constitution.\nThus, they have been replaced TWICE now by later, more inclusive, laws.</p>\n<p>Has nothing to do with "international law", which is largely non-binding itself outside of treaties that more than one nation has agreed to and signed.</p>\n",
"score": 4
}
] |
[
"united-states",
"constitutional-law"
] |
Copyright for book covers from Google Books API
| 1 |
https://law.stackexchange.com/questions/7065/copyright-for-book-covers-from-google-books-api
|
CC BY-SA 3.0
|
<p>Do I have the right to display a book cover in my mobile application assuming it's provided by Google Books and I give Google credits?</p>
<p>(I don't earn money, don't display ads and don't copy the image on my server)</p>
| 7,065 |
[
{
"answer_id": 16882,
"body": "<p>It depends on the context, purpose and use. It might be <a href=\"https://en.wikipedia.org/wiki/Fair_use\" rel=\"nofollow noreferrer\">fair use</a> or allowed similar exceptions in other countries or could be a copyright infringement.</p>\n\n<p>For example, using book covers images in a <a href=\"http://listocomics.com/el-misterio-de-los-detectives-mellizos/\" rel=\"nofollow noreferrer\">blog entry doing a critical analysis of those books covers</a> is OK under <a href=\"https://en.wikipedia.org/wiki/Right_to_quote\" rel=\"nofollow noreferrer\">right to quote</a> (as covered by Spanish law) and it would be OK under fair use. Displaying book covers in relation to news coverage (of news related to the books) or to advertise the books <a href=\"http://blog.librarylaw.com/librarylaw/2008/08/book-jackets--.html\" rel=\"nofollow noreferrer\">seems to be OK under US law</a>.</p>\n\n<p>Anyway, some other uses aren't covered. For example, use of covers of Pokémon books as a substitute for cards in a game in your app wouldn't be allowed.</p>\n\n<p>Therefore, to give a useful answer we need to know more about how do you plan to use those images.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property"
] |
Issues with taking unofficial money from girlfriend when paying mortgage
| -2 |
https://law.stackexchange.com/questions/16492/issues-with-taking-unofficial-money-from-girlfriend-when-paying-mortgage
|
CC BY-SA 3.0
|
<p>Country: The Netherlands</p>
<p>Let's assume I have a girlfriend and want to buy an apartment. I take a mortgage completely on my own name and start living in the apartment with my girlfriend. Now I have several questions in case we would break up:</p>
<ol>
<li>Let's assume I pay for mortgage on my own, but she buys some furniture, paints walls, etc. Does she have any rights on my apartment, or not?</li>
<li>Let's assume that officially I was paying for mortgage myself, but she is generous so she sends me 50% of my monthly mortgage payments to by bank account as an unofficial help. I don't think there is anything illegal with that. However, now if we would break up, she could go to court, show transactions and say that she was paying part of my mortgage. Is it possible that court would say that now part of the apartment belongs to her, or there is no way for her to prove that I was using that money as mortgage payments?</li>
<li>Similar situation in 2nd question, but additionally, I would like to note that in The Netherlands banks usually will not allow you to rent out apartment if you still own bank and are paying a mortgage. How would I prove to the court or bank that those payments were not her monthly rent payments to me?</li>
</ol>
<p>When I say 'girlfriend', I mean completely unofficial. I am not sure how much would situation change if she would become my wife after me buying an apartment.</p>
| 16,492 |
[
{
"answer_id": 16594,
"body": "<ol>\n<li><p>As she lives in the apartment, she has certain rights. In particular, she cannot be evicted without due process. The joint investment confirms she's more than a squatter. It's unlikely that the paint would cause joint ownership, as painting is considered maintenance. Furniture is fully separate from the apartment.</p></li>\n<li><p>Certainly not illegal. It's not even qualified as a gift. It's a contribution to a joint household. But as you suspect, things can get messy at a break-up - and doubly so when you haven't arranged matters formally. It's pretty unlikely the court will rule that she co-owns the apartment - ownership of real estate generally can only be transferred by formal contract (via Notaris/Kadaster - Dutch notaries and Land Title Agency). However, she can be awarded a financial claim on you. (Verrekenovereenkomst). </p></li>\n<li><p>The burden of proof is on the bank, not you. Furthermore, <em>you</em> still live in your apartment, while the clause is intended to protect against absent landlords. </p></li>\n</ol>\n",
"score": 1
}
] |
[
"mortgage"
] |
Is CS:GO Jackpot legal?
| 6 |
https://law.stackexchange.com/questions/1054/is-csgo-jackpot-legal
|
CC BY-SA 3.0
|
<p>I recently stumbled upon a website where people gamble for <a href="http://store.steampowered.com/app/730/" rel="nofollow">Counter Strike: Global Offensive</a> skins called CS:GO Jackpot. And to my surprise, it is extremely popular.</p>
<p>Is it legal for those running CS:GO Jackpot to do this? Do they need a gambling license?</p>
| 1,054 |
[
{
"answer_id": 5864,
"body": "<p>Arguments that they are digital game items with no \"real world value\" is a very bad argument to be tried to use here. That same argument could easily be used for BitCoin, gold, or silver, and yet, those are all considered to have value. If you tried to make a casino that ONLY took one (or a combination of those) as payment, they'd still under the jurisdiction of the local gaming laws. I'll add the site is a raffle site and almost every state in the USA considers raffles \"gambling\". There are very specific requirements which can allow them to be operated but that site definitely doesn't follow any of them.</p>\n\n<p>It doesn't matter who assigns the cash value to it, just that enough people assign cash value. That is all that matters and given how many users sites like OPSkins.com have (over one million users), I'd definitely have to say that these game items have enough people that consider them to have value.</p>\n\n<p>Also, just because you use something that doesn't have value to an outside observer, doesn't mean it's not illegal. They could be using blades of grass for all that matters, it would still be under the jurisdiction of gaming laws if there is a major cash exchange for blades of grass. In reality is just means they're using a fiat currency and that makes sites like OPSkins.com money launderers.</p>\n\n<p>The only reason the question wasn't raised earlier was because the only gambling site prior to CSGOJackpot.com was CSGOLounge.com which is located in eastern Europe. On top of that, it has no house cut and therefore it allows betting there to be classified as \"a game of skill\" since you can obtain an edge and consistently win. Though that doesn't mean it wouldn't still need a gaming license given Navada's recent decision to ban paid fantasy sports sites FanDuel and DraftKings from operating in Navada.</p>\n\n<p>However, with the rise of many other gambling sites, expect the government to come in and start saying something, especially given that about half of the game's population is under 18.</p>\n\n<p>EDIT: One last point I'll make is that to say the game company doesn't set any prices is also an invalid argument because Valve sets the prices for keys, stickers, and sticker capsules (which it sells all three directly to customers). These are all fixed prices in USD. While there are sales for the sticker stuff here and there, keys are always a fixed price of $2.49 USD. This never changes and therefore Valve pegs the \"value\" of a key to be at most $2.49 USD. Because they don't let you sell it back to them, you can sell them second hand at a lower rate but the basic rate is still based on the $2.49 initial sale price.</p>\n\n<p>Also, given the current laws on digital properties, the Steam Community Market Terms of Service, as well as the IRS's rulings (which you can confirm with an IRS agent), it all comes down to the secondary transfers of items being viewed as being taxable. If it's taxable, the economic value is there and gaming laws will apply.</p>\n",
"score": 2
}
] |
[
"united-states",
"gambling"
] |
ASKED: Why do many "No Trespassing" signs say "POSTED"?
| 93 |
https://law.stackexchange.com/questions/83103/asked-why-do-many-no-trespassing-signs-say-posted
|
CC BY-SA 4.0
|
<p>Many "no trespassing" signs say "POSTED" in large letters at the top. Why? Obviously, the sign is posted; that's the whole purpose of a sign. To me, it makes as much sense as putting "ASKED" at the start of a Stack Exchange question or "TEXTED" at the start of a text. Does it serve any legal purpose? Or is it just designed to scare potential trespassers with legal-looking text?</p>
| 83,103 |
[
{
"answer_id": 83125,
"body": "<h2>"Posted" is a Term of Art</h2>\n<p>"<strong>Posted</strong>" is a term of art in trespass law, specifically meaning that signs forbidding entry have been placed at the borders of a parcel. The page <a href=\"https://www.lawinsider.com/dictionary/properly-posted\" rel=\"noreferrer\">"Properly posted definition"</a> from <em>Law Insider</em> reads:</p>\n<blockquote>\n<p>Properly posted means that signs prohibiting trespass—or bright yellow, bright orange or fluorescent paint—are clearly displayed at all corners, on fishing streams crossing property lines, and on roads, gates and rights-of-way entering the land. Or, they are displayed in a manner that is visible to a person in the area.</p>\n</blockquote>\n<p>The entry <a href=\"https://legal-dictionary.thefreedictionary.com/Posting\" rel=\"noreferrer\">"Posting"</a> in the "Legal" section of <em>The Free Dictionary</em> reads:</p>\n<blockquote>\n<p><strong>Posting</strong><br />\nIn connection with Trespass statutes, the act of placing or affixing signs on private property in a manner to give notice of the trespass.</p>\n</blockquote>\n<p>The page <a href=\"https://www.hy-ko.com/blog/the-importance-of-posting-property-signs\" rel=\"noreferrer\">"The Importance of Posting Property Signs"</a> reads in relevant part:</p>\n<blockquote>\n<p>Why should you use posted signs on property? Posting property is a great way to let someone know they have entered private land and they might not be welcome. Using posted signs not only indicates trespassing but also can specify restricted activities. Signs are good for both rural and urban settings as a way to protect owners and their property.</p>\n<p>...</p>\n<p>Most states have specific rules for property signs that must be followed. Some rules may include:</p>\n<ol>\n<li>Words used: POSTED or NOTICE</li>\n<li>Sign size: 11" x 11" or 144 square inches</li>\n<li>Lettering size: minimum of 2"</li>\n<li>Sign color: purple, bright orange, yellow</li>\n<li>Sign distance: every 100 feet</li>\n</ol>\n<p>Some states allow the use of spray paint to mark trees and fences in lieu of a sign. Purple paint is frequently used because it stands out against common natural colors. However, if a trespasser is unaware of this marking method, it would be more effective to use a sign.</p>\n<p>Check local and state laws to confirm what is needed to properly post legally in your area.</p>\n</blockquote>\n<p>Several US states use the term "Posted" in their laws on trespass, and provide that the presence of the word "posted" on a sign has special significance.</p>\n<h2>Maryland</h2>\n<p><a href=\"/questions/tagged/maryland\" class=\"post-tag\" title=\"show questions tagged 'maryland'\" rel=\"tag\">maryland</a></p>\n<p><a href=\"https://law.justia.com/codes/maryland/2017/criminal-law/title-6/subtitle-4/section-6-402/\" rel=\"noreferrer\">Maryland Criminal Law Code § 6-402 (2017)</a> provides that:</p>\n<blockquote>\n<p>(a) Prohibited. -- A person may not enter or trespass on property that is <strong>posted</strong> conspicuously against trespass by:</p>\n<p>(a) (1) signs placed where they reasonably may be seen; or</p>\n<p>(a) (2) paint marks that:<br />\n(a) (2) (i) conform with regulations that the Department of Natural Resources adopts under § 5-209 of the Natural Resources Article; and<br />\n(a) (2) (ii) are made on trees or posts that are located:</p>\n<p>(a) (2) (ii) 1. at each road entrance to the property; and<br />\n(a) (2) (ii) 2. adjacent to public roadways, public waterways, and other land adjoining the property.</p>\n</blockquote>\n<p>The law firm page <a href=\"https://perettillc.com/2011/10/trespassing-laws-in-maryland/\" rel=\"noreferrer\">"Trespassing Laws in Maryland"</a> reads in relevant part:</p>\n<blockquote>\n<p><strong>Posted Property Trespass</strong><br />\nA person is not allowed to enter onto property that is posted conspicuously against trespassing. That posting can come in the form of signs that are placed where they can be reasonably seen or by paint marks on trees or posts at the entrances and land adjacent to the property.</p>\n</blockquote>\n<h2>New York</h2>\n<p><a href=\"/questions/tagged/new-york-state\" class=\"post-tag\" title=\"show questions tagged 'new-york-state'\" rel=\"tag\">new-york-state</a></p>\n<p>The page <a href=\"https://www.dec.ny.gov/lands/118436.html\" rel=\"noreferrer\">"Posting Your Land"</a> from the NY Dept of Environmental Conservation reads in relevant part:</p>\n<blockquote>\n<p><strong>Trespassing</strong></p>\n<p>Trespassing is illegal even on unposted property. Instead of posting, a landowner or other authorized person may issue written notice to another individual informing them that they are prohibited from entering the property. The notice must contain a description of the property, what restrictions apply (hunting, fishing, trapping) and the person or persons prohibited from entry. It should be delivered by certified mail or other processes (ex: legal notice in newspaper) to prove that the person was served. At any time, anyone by the landowner, occupant, or other authorized person to leave the premises (posted or not), must do so immediately.</p>\n<p>Trespassing on areas posted against trespass pursuant to the Environmental Conservation Law is punishable by a fine up to $250 and/or up to 15 days in jail.</p>\n<p>It is a defense to this type of trespass that there are not signs posted instructing people to stay off the property. It may also be a defense that any signs posted in the area are not in the proper place to be easily seen by visitors to the property.</p>\n<p><strong>Signage Details</strong></p>\n<p>Hardware and farm supply stores frequently carry signs for posting. Customized signs may also be obtained from local printers. DEC doesn't provide signs to private landowners unless the landowner is a cooperator under the Fish and Wildlife Management Act. In this case, they will be provided with "Safety Zone" signs. Cooperators provide free public access to most of their property in a large cooperative hunting/fishing area.</p>\n<p>Signs must be a minimum of 11 inches by 11 inches. They also must bear the name and address of the owner, lawful occupant or other person or organization authorized to post the area. <strong>The sign must bear a conspicuous statement which shall either consist of the word "POSTED" or warn against entry</strong> for specified purposes or all purposes without the consent of the person whose name appears on the sign. These words must cover a minimum space of 80 square inches (about 9 by 9 inches) of the sign.</p>\n</blockquote>\n<div class=\"s-table-container\">\n<table class=\"s-table\">\n<thead>\n<tr>\n<th style=\"text-align: center;\">Image from the NYS DEC page linked above</th>\n</tr>\n</thead>\n<tbody>\n<tr>\n<td style=\"text-align: center;\"><a href=\"https://i.stack.imgur.com/iD7Oj.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/iD7Oj.jpg\" alt=\""Posted" sign\" /></a></td>\n</tr>\n</tbody>\n</table>\n</div>\n<p>(There is a very similar image included in the <a href=\"https://en.wikipedia.org/wiki/Trespass#Trespass_to_land\" rel=\"noreferrer\">Wikipedia article "Trespass"</a>.)</p>\n<h2>California</h2>\n<p><a href=\"/questions/tagged/california\" class=\"post-tag\" title=\"show questions tagged 'california'\" rel=\"tag\">california</a></p>\n<p>In California "Posted property" is the legal term for property where suitable signs have been placed along the boundary or near it, to informa people tht trespassing is forbidden. But it appears that in CA the word "Posted" need not appear on such signs, the words "No Trespassing" being sufficient. California also makes it a misdemeanor (Under section 602) to enter into or remain on property of another, without any legal right to be there, if one is instructed not to enter, or to leave, but such proeprty is not considered "posted".</p>\n<p>California Penal Code <a href=\"https://codes.findlaw.com/ca/penal-code/pen-sect-553/\" rel=\"noreferrer\">section 553</a> provides that:</p>\n<blockquote>\n<p>he following definitions apply to this article only:</p>\n<p>(a) “Sign” means a sign not less than one (1) square foot in area and upon which in letters not less than two inches in height appear the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.”</p>\n<p>(b) “Posted property” means any property specified in Section 554 which is posted in a manner provided in Section 554.1 .</p>\n<p>(c) “Posted boundary” means a line running from sign to sign and such line need not conform to the legal boundary or legal description of any lot, parcel, or acreage of land, but only the area within the posted boundary shall constitute posted property, except as otherwise provided in subdivision (e) of Section 554.1 .</p>\n</blockquote>\n<p>California Penal Code <a href=\"https://codes.findlaw.com/ca/penal-code/pen-sect-554/\" rel=\"noreferrer\">section 554</a> provides in relevant part that:</p>\n<blockquote>\n<p>Any property, except that portion of such property to which the general public is accorded access, may be posted against trespassing and loitering in the manner provided in Section 554.1 , and thereby become posted property subject to the provisions of this article applicable to posted property, if such property consists of, or is used, or is designed to be used, for any one or more of the following: ...</p>\n</blockquote>\n<p>California Penal Code <a href=\"https://codes.findlaw.com/ca/penal-code/pen-sect-554.1.html\" rel=\"noreferrer\">section 554.1</a> provides that:</p>\n<blockquote>\n<p>Any property described in Section 554 may be posted against trespassing and loitering in the following manner:</p>\n<p>(a) If it is not enclosed within a fence and if it is of an area not exceeding one (1) acre and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of the area and at each entrance.</p>\n<p>(b) If it is not enclosed within a fence, and if it is of an area exceeding one (1) acre, or contains any lineal dimension exceeding one (1) mile, by posting signs along or near the exterior boundaries of the area at intervals of not more than 600 feet, and also at each corner, and, if such property has a definite entrance or entrances, at each such entrance.</p>\n<p>(c) If it is enclosed within a fence and if it is of an area not exceeding one (1) acre, and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of such fence and at each entrance.</p>\n<p>(d) If it is enclosed within a fence and if it is of an area exceeding one (1) acre, or has any lineal dimension exceeding one (1) mile, by posting signs on, or along the line of, such fence at intervals of not more than 600 feet, and also at each corner and at each entrance.</p>\n<p>(e) If it consists of poles or towers or appurtenant structures for the suspension of wires or other conductors for conveying electricity or telegraphic or telephonic messages or of towers or derricks for the production of oil or gas, by affixing a sign upon one or more sides of such poles, towers, or derricks, but such posting shall render only the pole, tower, derrick, or appurtenant structure posted property.</p>\n</blockquote>\n<p>California Penal Code <a href=\"https://codes.findlaw.com/ca/penal-code/pen-sect-555.html\" rel=\"noreferrer\">section 555</a> provides that:</p>\n<blockquote>\n<p>It is unlawful to enter or remain upon any posted property without the written permission of the owner, tenant, or occupant in legal possession or control thereof. Every person who enters or remains upon posted property without such written permission is guilty of a separate offense for each day during any portion of which he enters or remains upon such posted property.</p>\n</blockquote>\n",
"score": 46
},
{
"answer_id": 83111,
"body": "<p>The Vermont Fish and Wildlife Department has a <a href=\"https://vtfishandwildlife.com/learn-more/landowner-resources/private-land-and-public-access/what-posting-means\" rel=\"noreferrer\">web page about this</a>. If you read the <a href=\"https://legislature.vermont.gov/statutes/section/10/119/05201\" rel=\"noreferrer\">current law</a> you will see the exact wording of the signs is not specified. But in the past, the exact wording of the signs used to be specified in the law. In many states, the word "posted" was required.</p>\n<p>I live across the road from a state wildlife management area, and can state from experience that among hunters, "post" means to erect notices on the edge of property that hunting is forbidden, and "posted" is the adjective that describes such property.</p>\n",
"score": 26
},
{
"answer_id": 83141,
"body": "<p>To answer the underlying question (not "why is this done" (because it's legally required to, sometimes), but "why is it legally required"), I believe you need to look at the etymology of the word <em>posted</em>.</p>\n<p><a href=\"https://www.etymonline.com/word/post?ref=etymonline_crossreference#etymonline_v_45741\" rel=\"noreferrer\">Posted</a> took on the meaning "to make known", as it referred to the method by which someone made something known - affixing it to a post in a public place:</p>\n<blockquote>\n<p>"to affix (a paper notice, advertisement, etc.) to a post" (in a public place), hence, "to make known, to bring before the public," 1630s</p>\n</blockquote>\n<p>As such, "POSTED" on the sign does not only mean "put on a post" (though it also indicates that!); it means "made known", indicating that a person walking by (a member of the public!) should read it and be aware of its contents.</p>\n<p>Beyond that information, there's not a lot out there about the exact reasons some states require(d) or suggest(ed) "POSTED" to be part of the sign.</p>\n",
"score": 9
},
{
"answer_id": 83156,
"body": "<p>The presence of the word "POSTED" on a sign means "REGISTERED" and thus may have special significance in locations that prefer this.</p>\n<p>This word has many uses to keep the public or someone informed according to <a href=\"https://www.google.com/search?&q=posted%20meaning\" rel=\"nofollow noreferrer\">many english dictionaries.</a> such as "display (a notice) in a public place"</p>\n<p>It may be that explicit proof of signage must be registered in some locations, when it comes to prosecution matters in some counties and may require annual fees.</p>\n<p>The absence of the word "posted" also might be insignificant in some states where the contents of rights to privacy, hunting or trespassing is clearly indicated as required. e.g. "posted" is not required in California.</p>\n<p>References:</p>\n<ol>\n<li><a href=\"https://vtfishandwildlife.com/learn-more/landowner-resources/private-land-and-public-access/what-posting-means\" rel=\"nofollow noreferrer\">https://vtfishandwildlife.com/learn-more/landowner-resources/private-land-and-public-access/what-posting-means</a></li>\n<li><a href=\"https://thelawdictionary.org/article/laws-for-posting-no-trespassing-signs/\" rel=\"nofollow noreferrer\">https://thelawdictionary.org/article/laws-for-posting-no-trespassing-signs/</a></li>\n<li><a href=\"https://www.lawinsider.com/dictionary/temporary-posted-sign\" rel=\"nofollow noreferrer\">https://www.lawinsider.com/dictionary/temporary-posted-sign</a></li>\n<li><a href=\"https://www.dec.ny.gov/lands/118436.html#Posting\" rel=\"nofollow noreferrer\">https://www.dec.ny.gov/lands/118436.html#Posting</a></li>\n<li><a href=\"https://www.bestofsigns.com/blog/no-trespassing-signs-laws-what-a-sign-can-cant-do-in-all-50-states/\" rel=\"nofollow noreferrer\">https://www.bestofsigns.com/blog/no-trespassing-signs-laws-what-a-sign-can-cant-do-in-all-50-states/</a></li>\n</ol>\n",
"score": 3
},
{
"answer_id": 83155,
"body": "<p>Just means it is posted properly. The no trespassing sign is informative where as the "posted" just is to indicate all rules are being followed and met</p>\n",
"score": 0
},
{
"answer_id": 83195,
"body": "<p>In that context, "POSTED" is not a verb but an adjective.</p>\n<p>Additionally, I think these signs typically omit "LAND"; see <a href=\"https://www.lawinsider.com/dictionary/posted-land\" rel=\"nofollow noreferrer\">Posted Land</a>.</p>\n",
"score": 0
}
] |
[
"united-states",
"legal-terms",
"common-law",
"legal-history",
"trespassing"
] |
If one is charged with a crime and then get acquitted, can they be awarded any costs?
| 2 |
https://law.stackexchange.com/questions/90141/if-one-is-charged-with-a-crime-and-then-get-acquitted-can-they-be-awarded-any-c
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CC BY-SA 4.0
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<p>If you get convicted, then generally you have to pay something toward the prosecution costs. But what if you prevail in upholding your innocence? Does the street go two ways?</p>
<p>And does the answer differ at all if it is not the crown but a private party that is the one waging the prosecution?</p>
| 90,141 |
[
{
"answer_id": 90147,
"body": "<h2><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<p>If you are charged with a crime and found not guilty, the state has to pay for the following according to <a href=\"https://www.gesetze-im-internet.de/stpo/__467.html\" rel=\"nofollow noreferrer\">StPO § 467</a> (code of criminal prosecution):</p>\n<ul>\n<li>Your lawyer</li>\n<li>All costs to the court</li>\n</ul>\n<p>There are <em>some</em> cases in which the court may find that <em>some</em> costs are not to be repaid, making up points 2-5.</p>\n<p>If the accused was in detention and found not guilty, they are to be repaid for this according to the <a href=\"https://www.gesetze-im-internet.de/streg/index.html\" rel=\"nofollow noreferrer\">StrEG</a> - Law for the repayment for law enforcement actions.</p>\n",
"score": 1
},
{
"answer_id": 90448,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>You may be awarded a defense costs order at what now seems to amount to legal aid rates.</p>\n<p>Since LASPOA 2012 this has been massively curtailed but the curtailed regime has now been restored to crown trials’ applicability.</p>\n<p>As with everything else it has become diminished with austerity.</p>\n<p><a href=\"https://www.defence-barrister.co.uk/costs-in-criminal-cases\" rel=\"nofollow noreferrer\">https://www.defence-barrister.co.uk/costs-in-criminal-cases</a></p>\n",
"score": 0
}
] |
[
"criminal-law",
"england-and-wales",
"criminal-procedure",
"prosecution",
"costs"
] |
Requiring incoming tenants to purchase furniture during a lease transfer?
| 0 |
https://law.stackexchange.com/questions/90424/requiring-incoming-tenants-to-purchase-furniture-during-a-lease-transfer
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CC BY-SA 4.0
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<p>I've been renting in Toronto, Canada for several years now. Over those years, rent prices have skyrocketed (my current rent is about half of my new neighbors' rent who has a nearly identical unit). I am moving out soon and considering offering a lease transfer with the condition that the new tenant must buy my furniture. My furniture is not worth much but, given that my apartment will be highly desirable, I believe I can sell it for a huge profit. Is this legal?</p>
| 90,424 |
[
{
"answer_id": 90444,
"body": "<h2>Why complicate things - just sell the lease</h2>\n<p>Assuming that you are allowed by the terms of the lease to transfer it, you can negotiate whatever price from the incoming tenant that you can.</p>\n",
"score": 1
}
] |
[
"rent",
"sublease",
"sale-of-goods"
] |
Is Uruguay violating humans rights by not conceding the right to nationality?
| 1 |
https://law.stackexchange.com/questions/90422/is-uruguay-violating-humans-rights-by-not-conceding-the-right-to-nationality
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CC BY-SA 4.0
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<p>Myanmar and Uruguay are currently the only countries in the world that deny immigrants any path to naturalization. Uruguayan legal citizenship has special characteristics. A person who acquires it retains their nationality of origin, which is determined by Uruguayan law to be that of their country of birth and therefore, is immutable. Legal citizens acquire political rights but do not acquire Uruguayan nationality as natural citizens do. According to Uruguayan law, those born in Uruguay or whose parents or grandparents are Uruguayan natural citizens are considered to be Uruguayan nationals.</p>
<p>The Uruguayan State defined nationality in this way based on an interpretation of the Constitution made by the jurist Justino Jiménez de Aréchaga in the mid-twentieth century. Jiménez de Aréchaga's interpretation, found in one of Uruguay's fundamental academic interpretative texts, states: <em>"In the first place, nationality is presented to us as a natural bond, derived from birth, from blood"</em>. Likewise, this jurist believed that <em>"nationality corresponds to a certain sociological or psychological reality"</em>. Speaking on behalf of the drafters of the Constitution of 1830, this jurist concluded: <em>"The quality of nationality thus depends on one fact: birth in the territory of the State". Finally, "nationality is irrevocable"</em>.</p>
<p>According to Uruguayan law, the concepts of nationality and citizenship are distinguishable, the first being of a real or sociological nature and the second of a legal nature.</p>
<p>He argued that nationality and citizenship are two completely different individual conditions. According to Aréchaga's view nationality is a permanent state of the individual, which does not suffer any alteration whatever the point of the earth they inhabit, and citizenship is, on the contrary, variable and alters with the different domiciles that men acquire in the different societies into which mankind is divided.</p>
<p>The source of citizenship, he added, is in the actual domicile and not in nationality.</p>
<p>Therefore, he says: <em>"each state feels who its nationals are, and declares it by its law; on the other hand, each state decides who its citizens are, and it disposes of them by its law, for nationality corresponds to a certain sociological or psychological reality."</em> (JUSTINO JIMÉNEZ DE ARECHAGA, La Constitución Nacional. Volume II pg. 186)</p>
<p>As a result of Uruguay's unusual distinction between citizenship and nationality (it's the only country in the world that recognizes the right to citizenship without being a national), legal citizens have encountered problems with their Uruguayan passports at airports around the world since 2015. This is due to recommendations in the seventh edition of Doc. 9303 of the International Civil Aviation Organization (ICAO), which requires that travel documents issued by participating states include the "Nationality" field. The lack of a naturalization path means that the Nationality field in legal citizens' passports indicates their country of birth, which Uruguay assumes to be their nationality of origin. Many countries do not accept passports issued by a country that declares the holder to be a national of another country. As a consequence, it has severely curtailed legal citizens' exercise of the right to free movement, as their travel abroad is often difficult or downright impossible.</p>
<p>Due to its current and narrow definition of nationality, Uruguay could be violating the sovereignty of other countries by assigning foreign nationalities in its official documents, thus overriding their powers. Some Uruguayan legal citizens may even, as a result of the application of a national law of a third nation and this Uruguayan interpretation, become de facto stateless.</p>
| 90,422 |
[
{
"answer_id": 90425,
"body": "<p>This seems similar to a lot of other countries. For example, in U.S. Law, only natural born U.S. Citizens can be President or Vice President, whereas immigrant Citizens can hold any other elected or appointed office in the U.S. Government.</p>\n<p>In New Zealand, New Zealand Citizens living aboard cannot vote in New Zealand election, because living aboard means they have no stake in elections.</p>\n<p>As to your passport concerns, it's generally accepted that a nation that a validly issued passport by a nation is a validly issued passport for the point of crossing the boarder. In nations that allow dual citizenship, people who have dual citizenships may own passports from both nations and nations may issue passports to non-citizens for numerous reasons (One famous example was <a href=\"https://en.wikipedia.org/wiki/Canadian_Caper\" rel=\"nofollow noreferrer\">Canadian Caper</a>, in which Canada issued valid Canadian passports to six American diplomats who managed to flee the seizure of the U.S. Embassy in Tehran during the Iranian Hostage Crisis and were being hidden within the residents of the Canadian Ambassador to Iran. While the CIA managed to bring the passports to the escapees, it was only the six ambassadors who received valid Canadian Passports, while the CIA agent on the mission had to forge a Canadian Passport.).</p>\n",
"score": 1
},
{
"answer_id": 90442,
"body": "<p>The United Nations Universal Declaration of Human Rights (which in many countries is viewed as aspirational and is not enforceable law) states with regard to nationality:</p>\n<blockquote>\n<p>Article 15</p>\n<ol>\n<li><p>Everyone has the right to a nationality.</p>\n</li>\n<li><p>No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.</p>\n</li>\n</ol>\n</blockquote>\n<p>The core Human Right of "Nationality" (including the one found in Article 15(1) and the first part of Article 15(2) ("No one shall be arbitrarily deprived of his nationality") is normally viewed as a right not to be "<a href=\"https://en.wikipedia.org/wiki/Statelessness\" rel=\"nofollow noreferrer\">stateless</a>", rather than a right of an immigrant who has a nationality to acquire the nationality of the place where they reside. As Wikipedia explains at the link above:</p>\n<blockquote>\n<p>An important measure to prevent statelessness at birth bestows\nnationality to children born in a territory who would otherwise be\nstateless. This norm is stipulated in the 1961 Convention on the\nReduction of Statelessness; appears in several regional human rights\ntreaties, including the American Convention on Human Rights, the\nEuropean Convention on Nationality, and the African Charter on the\nRights and Welfare of the Child; and is implicit in the United Nations\nConvention on the Rights of the Child.</p>\n</blockquote>\n<p>But if the parents' nationality or nationalities can be passed onto a child born outside the country or countries of the parents' nationality, then this human rights protection is not implicated.</p>\n<p>On the other hand, if neither of the parents could under the law of their nationality pass their nationality onto their child born in Uruguay, for example, that would be considered a human rights violation if the child could not obtain Uruguayan nationality either.</p>\n<p>Also, while the law of Uruguay distinguishes between citizenship and nationality, a grant of citizenship from Uruguay would suffice to meet the human rights requirement of affording someone a right to some "nationality." The way that the term is used in the law of Uruguay and the way that this term is used in human rights treaties is not identical.</p>\n<p>U.S. immigration and nationality law treats nationality as a second class form of citizenship. But, the law of Uruguay treats nationality more as a descriptive fact as opposed to treating it purely as a legal status.</p>\n<p>In the same vein, one can imagine a system of family law that has different terms of natural born children and adopted children that is used, for example, in incest statutes. But this wouldn't necessarily be a denial of a right to have parent-child relationship for purposes of human rights treaties or laws.</p>\n<p>The problem seems to be with the recommendations of the seventh edition of Doc. 9303 of the International Civil Aviation Organization (ICAO) in 2015, which produce inappropriate results in the case of two countries whose citizens are treated unfairly over a semantic issue, and not with the countries denying human rights to people, <em>per se</em>.</p>\n<p>The second part of the United Nations Declaration of Human Rights Article 15(2) states (emphasis added):</p>\n<blockquote>\n<p>No one shall be <em>arbitrarily</em> . . . denied the right to change his\nnationality.</p>\n</blockquote>\n<p>This certainly doesn't mean that someone has a right to become a citizen or national of any country that he or she wants.</p>\n<p>It seems to be primarily aimed at laws of a country with an old nationality denying someone the right to take a new nationality with the permission of the new nation, or an imposition of a requirement for citizenship that compromises another human right (e.g. allowing only members of a particular religion to take on a new nationality) but I actually haven't seen much discussion of this provision and it is not frequently the subject of human rights claims compared to some of the other rights.</p>\n<p>Another possibly application, in relation to the issue of statelessness may apply to people who are denied an ability to change their nationality when their own nation ceases to exist.</p>\n<p>This portion of the right is not called out, for example, in <a href=\"https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/286/02/PDF/G1528602.pdf?OpenElement\" rel=\"nofollow noreferrer\">a recent U.N. Human Rights report</a> related to nationality except insofar as it applies to the possibility that children are left stateless.</p>\n",
"score": 1
}
] |
[
"human-rights",
"naturalization"
] |
*Buecking* holding finds that cooling-off days for decrees of transitory legal separation do not count for in rem decrees of divorce
| 1 |
https://law.stackexchange.com/questions/87467/buecking-holding-finds-that-cooling-off-days-for-decrees-of-transitory-legal-s
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CC BY-SA 4.0
|
<p>The <em>Buecking</em> holding unambiguously finds that cooling off days for transitory decrees of legal separation do not count for cooling off days in rem decrees of divorce.</p>
<p>The Dissolution Act of 1973 regarding RCW §26.09.030 supports the conclusion that the 90 day waiting period applies to legal separations: [WASHINGTON LAW REVIEW Volume 49 Number 2 Symposium: Recent Washington Legislation 2-1-1974 The Dissolution Act of 1973: From Status to Contract? Luvern v. Rieke University of Washington School of Law page 390] “It should be noted that <strong>legal separation cannot be decreed until the end of the 90 day cooling-off period required by the Act</strong>. Immediate needs may of course, be met by temporary orders pursuant to § 26.09.060. There is no more reason for a hasty entry of a coerced decree of legal separation than there is for a decree of dissolution."
<a href="https://i.stack.imgur.com/PFMc9.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/PFMc9.png" alt="enter image description here" /></a>
<a href="https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&context=wlr" rel="nofollow noreferrer">https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&context=wlr</a></p>
<p>There was never any finding that the original legislative intent was unconstitutional.</p>
<p>The decision in Buecking was for a case where there was <em>both</em> a petition for legal separation and petition for dissolution. Legal separation is in personam/transitory, Dissolution however is in rem; basically legal separation cooling-off days don’t add up for divorce decree cooling off days, and that’s why the day counts are separate. Buecking never says there is no wait period for a decree of legal separation, it’s just that wait days for DLS do not count for the tolling to a divorce decree.<br />
“Decrees of legal separation are in personam and may be thought of as transitory actions. When more than a persona order is sought – when status is to be changed – the action acquires an in rem quality and different jurisdictional requisites are involved.15 <a href="https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&context=wlr" rel="nofollow noreferrer">https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=2028&context=wlr</a></p>
<p>THE PROBLEM IS that this particular case (Buecking) is important because it [[[wrongfully]]] up-ended (in some WA counties, not all) SPECIFIC written legislative intent for a 90 day cooling-off period to be applied to legal separations as well as divorces (Washington 1973 Dissolution Act).<br />
<strong>A first-glance reading of the holding without reading the full the context of the <em>two types of actions</em> misrepresents the decision.</strong></p>
<p>RCW 26.09.030(a) refers to "the decree" when it is a dissolution, and (d) refers to "the decree" when it is a legal separation; the other parameters <em>remain the same</em>.</p>
<p>Amy Buecking's "cooling off" post petition for legal separation did not sum into the entirely different "cooling off" post petition for her divorce.</p>
<ol>
<li><p>Further, after Amy properly filed for legal separation day 1 (12/12/08), she should have, if the court has SMJ, long before day 476 (4/2/10) have been granted a decree of legal separation (DLS). Why wasn't the petition signed?</p>
</li>
<li><p>The appellate brief says that on day 476 (4/2/10) Amy filed "an amended petition for dissolution, replacing the petition for legal separation she filed more than a year earlier." [[[Amy would have long ago had a DECREE for legal separation by day 90 or April 2, 2010, then per RCW 26.09.150 because it had been far more than 6 months (180 days) since filing for said legal separation. By 6 months plus 90 days or 270 days since, on 9/8/09, Amy could have easily gotten an immediate conversion of the decree of legal separation to a decree of dissolution: "RCW 26.09.150(2)(a) No earlier than six months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution..."]]]</p>
</li>
<li><p>The case goes on to say that on day 558 a judge entered a decree of divorce "on the amended petition." [[[The judge should have been abe to enter a decree of divorce on the decree of legal separation per RCW 26.09.150(2)(a) immediately after motion to convert on 4/2/10.]]]</p>
</li>
<li><p>Then on day 707 Tim's motion to vacate the DD because it was issued before the end of a 90 day wait period (day 82) was denied so Tim filed an appeal. [[[But per RCW 26.09.150 there would have been no wait at all on top of the 6 months had the petition for legal separation been signed.]]]</p>
</li>
<li><p>Then in September of 2011 the Appellate Court ruled that there is NO applicability of the wait period for legal separation petitions to the wait period for divorce petitions.</p>
</li>
<li><p>The appellate briefs do not ever call out the missing the decree of legal separation, in fact the term "decree of legal separation" is totally missing.</p>
</li>
</ol>
<p>The fact that the divorce decree was signed on day 82 did not impinge on the subject matter jurisdiction, so Tim lost on this point.</p>
<p>It's obvious that a 90 day cooling-off period for legal separations alone, is irrelevant to this case. It makes no sense to remove it against the will of the legislature's Dissolution Act of 1973. If you have any thoughts I'd appreciate them, thank you.</p>
| 87,467 |
[
{
"answer_id": 87469,
"body": "<p>The matter was unambiguously resolved for the whole state by the Washington Supreme Court in <a href=\"https://casetext.com/case/buecking-v-buecking\" rel=\"noreferrer\">Buecking v. Buecking</a>, 179 Wn. 2d 438. The trial court erroneously granted the divorce 82 days after the petition for dissolution was files, contrary to state law. Mr. Buecking did not object, and only later argued that the trial court lacked subject matter jurisdiction before 90 days had passed. The Court of Appeals held that if the trial court erred by entering a decree of dissolution before 90 days had passed, it was a legal error that did not involve the court's subject matter jurisdiction.</p>\n<p>The Supreme Court reaffirms the interpretation of the law – 90 days since the filing of <em>the</em> petition for dissolution, not 90 days since the filing of <em>some</em> petition (separation) that ultimately leads to dissolution. Buecking claims that the 90 day period is intended to limit the court's subject matter jurisdiction. The Supreme Court instead finds that "if a court can hear a particular class of case, then it has subject matter jurisdiction". So the lower court error was a legal error, and not a lack of subject matter jurisdiction.</p>\n<p>Bruening lost because he failed to make the correct legal objection to the trial court, and the 90 day rule is valid state-wide.</p>\n",
"score": 5
}
] |
[
"civil-law",
"family-law",
"divorce",
"washington"
] |
Are there any crimes or civil wrongs in disingenuously wasting another’s time?
| 0 |
https://law.stackexchange.com/questions/90400/are-there-any-crimes-or-civil-wrongs-in-disingenuously-wasting-another-s-time
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CC BY-SA 4.0
|
<p>Suppose that one phones you and states that they have a Nigerian princes inheritance which they would like to arrange to send to you.</p>
<p>Or that they <a href="https://law.stackexchange.com/questions/81170/what-are-the-legal-implications-of-josh-pieters-archie-mannerss-gag-against">would like to donate some money</a> to your organisation or work.</p>
<p>In either case the true purpose is to create a candid camera video for the purpose of mocking and deriding you.</p>
<p>You travel across town and spend your time meeting them to discuss the particulars before finding out that the entire thing was a ruse.</p>
<p>Because the proposal was of a gift then there may be said that there was no “consideration,” but how does this factor with the fact that you are in fact measurably worse off (as for a tube fare and an afternoon of your time) for the antic being a ruse?</p>
<p>Does this aspect of it render the act more of a civil wrong or even a crime?</p>
| 90,400 |
[
{
"answer_id": 90423,
"body": "<p>Depending on who said what, it may be <em>attempted fraud.</em> This would not exactly punish the wasted time, it would punish the attempt to do something more serious. Just how a legal system deals with <em>unsuccessful attempts</em> of a crime can be interesting in theory and practice -- can anyone prove that the Nigerian prince planned to follow up with a fraud, or could he claim that he was just boasting to inflate his ego?</p>\n<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a> <a href=\"https://www.gesetze-im-internet.de/stgb/__263.html\" rel=\"nofollow noreferrer\">§263 StGB</a></p>\n<blockquote>\n<p>(1) A person who [...] misleads another person by making false claims [...] for the own [...] financial advantage [...] shall be punished [...]<br />\n<strong>(2) The attempt is punishable.</strong><br />\n(My translation, reordering parts of the first section to create readable English.)</p>\n</blockquote>\n",
"score": 1
}
] |
[
"contract-law",
"england-and-wales",
"tort",
"any-jurisdiction",
"consideration"
] |
If one is tried+convicted of a crime at a certain time, can one be tried+convicted of another crime that happened at the same time? [Yakuza Series]
| -1 |
https://law.stackexchange.com/questions/90403/if-one-is-triedconvicted-of-a-crime-at-a-certain-time-can-one-be-triedconvict
|
CC BY-SA 4.0
|
<p>100% inspired by Yakuza Lost Judgement.</p>
<p>Bob is accused of assaulting Alice at X o'clock, with video evidence. It goes to trial, and Bob is successfully convicted.</p>
<p>Later on, strong evidence comes up of Bob committing the murder of Mark at X o'clock. (e.g. security camera footage + DNA evidence).</p>
<p>How can this be handled? Will Bob's original sentence (for assaulting Alice) have to be overturned before he can be tried for the murdering of Mark? Can someone in jail even be tried for something else while they're already in jail?</p>
<p>P.S.: For the original context: Alice was in cahoots with Bob. Alice said Bob did the crime, and Bob admitted to it. Furthermore, Bob was trying to make a mockery of the justice system by showing how, even though he obviously committed the murder of Mark, he would just stay in for short sentence over the fake assault of Alice.</p>
| 90,403 |
[
{
"answer_id": 90416,
"body": "<p>Bob will be convicted if he is found guilty beyond reasonable doubt.</p>\n<p>Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder.</p>\n<p>His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case.</p>\n<p>Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder.</p>\n<p>Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe.</p>\n",
"score": 4
},
{
"answer_id": 90415,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>The second charge/conviction would not be precluded, but the evidence that comes out could help the accused establish that the first was a wrongful conviction.</p>\n<h3>One could apply for review as a wrongful conviction</h3>\n<p>If the Crown introduces evidence at the second trial that clearly establishes innocence for the first conviction, there is path <a href=\"https://www.justice.gc.ca/eng/cj-jp/ccr-rc/rev.html\" rel=\"nofollow noreferrer\">for review by the Minister of Justice as a wrongful conviction</a>. The new evidence would very likely meet the threshold for being "new and significant" in that it was not before the court in the first trial and would have affected the verdict if it had been.</p>\n<h3><em>Autrefois convict</em> does not apply</h3>\n<p>The second prosecution would only be precluded if the second charged offence was for the very same "delict."</p>\n<p>For example, if A is involved in a scheme to get someone's money, and A is convicted of conspiracy to defraud, A could not be later (or at the same time even) be convicted of conspiracy to steal based on those very same acts.</p>\n<p>However, the principle of <em>autrefois convict</em> does not prevent a charge or conviction of a completely different offence, with different elements or different facts. For example, if A was convicted of <em>assaulting</em> B, that does not preclude a later conviction for <em>theft</em> from B, even if that theft happened at the same time. Likewise, a conviction of an assault of <em>B</em> does not preclude a conviction of an assault of <em>C</em>.</p>\n<p>These principles are explained in <em>Kienapple v. R.</em>, <a href=\"https://canlii.ca/t/1twxz\" rel=\"nofollow noreferrer\">[1975] 1 S.C.R. 729</a>.</p>\n<h3>Issue estoppel does not apply</h3>\n<p>Regarding the risk of inconsistent verdicts, there is a principle of issue estoppel in Canadian criminal law. If an issue was decided in the accused's favour in a first trial that resulted in acquittal, the Crown is forever bound to that fact. See <em>R. v. Mahalingan</em>, 2008 SCC 63:</p>\n<blockquote>\n<p>[22] ... issues which were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel.</p>\n</blockquote>\n<blockquote>\n<p>[23] It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies.</p>\n</blockquote>\n<p>In the circumstance you describe, the accused was not acquitted in the first trial, so the form of issue estoppel developed so far in Canadian law would not be available.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"court",
"trial",
"japan"
] |
Is facebook in violation of CCPA if they don't delete all messenger messages when you delete your account?
| 4 |
https://law.stackexchange.com/questions/52167/is-facebook-in-violation-of-ccpa-if-they-dont-delete-all-messenger-messages-whe
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CC BY-SA 4.0
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<p>It seems like Facebook won't delete your messages from the recipient's inbox when you delete your account. People send a lot of personal information in messages including their address, phone number, schools, work, etc.</p>
<p>Is this a violation of the CCPA (obviously if you live in California)? WhatsApp doesn't store messages on the server so obviously they can't delete messages from their server. And Instagram does delete your messages from both sides when you delete your account, which is what makes this choice even more odd, given that the Facebook product is in much hotter water regarding privacy.</p>
<p>I know this has been asked before in relation to GDPR, but I wonder if the same holds for CCPA. Here is the other question: <a href="https://law.stackexchange.com/questions/30951/facebook-vs-gdpr-private-messages-i-sent-to-others-will-never-be-deleted-erase">Facebook vs GDPR - Private Messages I sent to others will never be deleted/erased from Facebook servers</a></p>
| 52,167 |
[
{
"answer_id": 66720,
"body": "<h2>Relevant CCPA provisions (with links)</h2>\n<p>Under the <a href=\"https://ccpa-info.com/california-consumer-privacy-act-full-text/\" rel=\"nofollow noreferrer\">CCPA</a> section 1798.105):</p>\n<blockquote>\n<ol>\n<li>A consumer shall have the right to request that a business delete any personal information about the consumer which the business has collected from the consumer. ...</li>\n</ol>\n<p>...</p>\n<ol start=\"3\">\n<li>A business that receives a verifiable consumer request from a consumer to delete the consumer’s personal information pursuant to subdivision (a) of this section shall delete the consumer’s personal information from its records and direct any service providers to delete the consumer’s personal information from their records.</li>\n<li>A business or a service provider shall not be required to comply with a consumer’s request to delete the consumer’s personal information if it is necessary for the business or service provider to maintain the consumer’s personal information in order to:</li>\n</ol>\n<p>.<br />\n4. 1. Complete the transaction for which the personal information was collected, fulfill the terms of a written warranty or product recall conducted in accordance with federal law, provide a good or service requested by the consumer, or reasonably anticipated within the context of a business’ ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer<br />\n.<br />\n4. 4. Exercise free speech, ensure the right of another consumer to exercise his or her right of free speech, or exercise another right provided for by law.<br />\n.<br />\n4. 8.Comply with a legal obligation.<br />\n.<br />\n4. 9. Otherwise use the consumer’s personal information, internally, in a lawful manner that is compatible with the context in which the consumer provided the information.</p>\n</blockquote>\n<p><a href=\"https://ccpa-info.com/home/1798-140-definitions/\" rel=\"nofollow noreferrer\">Section 1798.140</a> (o) defines Pi as:</p>\n<blockquote>\n<p>(1) “Personal information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal information includes, but is not limited to, the following if it identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household:<br />\n(1) (A) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.</p>\n<p>...</p>\n<p>(1) (K) Inferences drawn from any of the information identified in this subdivision to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.</p>\n</blockquote>\n<p>Later in 1798.140 subsection (t) (2) (A) provides that:</p>\n<blockquote>\n<p>For purposes of this title, a business does not sell personal information when:</p>\n<p>A consumer uses or directs the business to intentionally disclose personal information or uses the business to intentionally interact with a third party, provided the third party does not also sell the personal information, unless that disclosure would be consistent with the provisions of this title. An intentional interaction occurs when the consumer intends to interact with the third party, via one or more deliberate interactions. Hovering over, muting, pausing, or closing a given piece of content does not constitute a consumer’s intent to interact with a third party.</p>\n</blockquote>\n<h2>Regulations</h2>\n<p>Under the <a href=\"https://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/oal-sub-final-text-of-regs.pdf\" rel=\"nofollow noreferrer\">CA AG's regulations implementing the CCPA</a> A business must respond to a request to delete withing 45 days, which may be extend once for up to an additional 45 days. The business must indicate if it will comply, and if not, indicate the legal provision which permits or requires it to decline.</p>\n<h2>Conclusion</h2>\n<p>Communications sent from one user to another identifying the source user certainly fit the general definition of PI, as they are clearly associated with an identifiable person. However, under 1798.105 (4.1) a request may be declined to delete information which is needed to "provide a good or service requested by the consumer", or which is "reasonably anticipated within the context of a business’ ongoing business relationship with the consumer" may be declined.</p>\n<p>It seems to me that in sending a message to another user of the service, a user clearly "requests" the service to provide this info to the other user. Moreover, this seems to be an action that is "reasonably anticipated. What is more, an argument could be made that the rights of the other user are impacted by any such deletion, although the CCPA, unlike the GDPR, does not require any balancing of the rights of others.</p>\n<p>Thus I think a case can be made that a service provider such as Facebook need not delete messages sent by one user to another on a request by the sending user.</p>\n<p>Beyond this, the CCPA does not grant any private right of action for requests to delete. That is the user is nor permitted to directly sue the business for such violations. Only the California Attorney General has the authority to bring such suits under the CCPA as it now stands.</p>\n<p>I can find no reported litigation or enforcement action on the right to delete, much less on the right to delete in a fact pattern such as the question supposes. In the absence of any court decision or opinion by the CA AG, there is no way to be sure how the law should be interpreted.</p>\n",
"score": 1
},
{
"answer_id": 60012,
"body": "<p>If the messages are PI, they have to delete them. For them not to be PI, the sensitive information needs to be deleted and also they should be protected against an increasing number of attacks. The basic ones are single-out (a unique person), inference (you can infer something without knowing the name of the person), membership,...</p>\n<p>If the messages contain indirect info that can be attributed to that specific person, such as 10 places they mentioned that they visited in the last month, the attacker can match this data with another database and get the identity of the person.</p>\n<p>To keep the data, Facebook needs to implement methods like t-closeness</p>\n<p>1798.140 has the definitions of sensitive, PI, and deidentified data.</p>\n<p>the messages have to go through a censorship. Obvious sensitive PI should be censored but also information through which someone can be identified. for example, if there is only one person with a certain interest in a certain zipcode, that information can be joined with a database of people with that interest in that zipcode and the person can be identified.</p>\n",
"score": 0
}
] |
[
"privacy",
"ccpa"
] |
Does "OK" imply "Yes", in the eyes of the law in general?
| 0 |
https://law.stackexchange.com/questions/90388/does-ok-imply-yes-in-the-eyes-of-the-law-in-general
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CC BY-SA 4.0
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<p>Is "OK" legally binding as a "Yes"?</p>
<p>In some situations, I have been asked questions, and I said "ok", but they just repeat their question one more time.</p>
<p>So I think "OK" means "whatever, I don't care". What do you think?</p>
| 90,388 |
[
{
"answer_id": 90391,
"body": "<p>Language is contextual. When the meaning of a communication is at issue in litigation, that meaning is gleaned from the totality of the evidence, not from any presumption of what a word means in isolation.</p>\n<p>"Okay" can mean "yes", it might mean only that you understand, it might communicate coerced acquiesence falling short of actual consent. See the discussion in <em>R. c. Byers</em>, <a href=\"https://canlii.ca/t/hswpc\" rel=\"noreferrer\">2018 QCCQ 4673</a>:</p>\n<blockquote>\n<p>[81] Regarding the petitioner’s pretention claiming that she\n“clearly express her wish to consult an attorney”, the Court considers\nthat the answer “OK” does not show a clear intention to consult a\nlawyer.</p>\n<p>[82] At the most “OK” could mean that she understood, that she heard\nthem and also could [have] signified “Yes, I would like to consult an\nattorney”.</p>\n<p>[83] In the decision Ellis, the Court of appeal had to analyze\nthe meaning of the words “OK” as part of evidence of purchasing a\nfirearm, the Court considered that this had an equivocal meaning.</p>\n<p>[84] Moreover, the Court wrote:</p>\n<blockquote>\n<p>“[40] (…) Viewed in the context of the whole of the evidence, we\nconsider it a reasonable inference that the two responses “Ok ok”\nsignified nothing more than an acknowledgement of the prices quoted.”</p>\n</blockquote>\n<p>[85] For analysis purpose, the Court will consider that the answer\n“OK” means “yes”.</p>\n</blockquote>\n<p>See also <em>R. v. Potvin</em>, <a href=\"https://canlii.ca/t/fq4d3\" rel=\"noreferrer\">2012 ONCA 113</a>:</p>\n<blockquote>\n<p>The pertinent facts known to the appellant were straightforward. The complainant repeatedly said “no” to sex and then appeared to say “yes” by uttering the word “okay”. Viewed in the context of all that preceded it, we agree with the trial judge that the complainant’s use of the word “okay” was ambiguous. In the absence of further inquiry by the appellant, a single “okay” after five refusals over a sustained period of time was simply insufficient to ground a reasonable but mistaken belief in consent.</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 90390,
"body": "<p>Okay would be acknowledgement of a statement, and will generally be taken to mean consent or acceptance, but it doesn't mean "yes."</p>\n<p>People are asking you the question again because if they are asking you a yes or no question, it isn't answered by "okay."</p>\n<p><strong>Yes/No questions:</strong></p>\n<p>Officer: Have you had anything to drink, sir?<br />\nYou: Okay.<br />\nOfficer: Have you had anything to drink, sir?<br />\nYou: Okay.<br />\nOfficer: This guy is high.</p>\n<p><strong>Contrast to:</strong></p>\n<p>Officer: Can I search your vehicle?<br />\nYou: Okay.<br />\nOfficer: starts searching</p>\n",
"score": 4
}
] |
[
"legal-terms"
] |
What is "probable cause"?
| 4 |
https://law.stackexchange.com/questions/8168/what-is-probable-cause
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CC BY-SA 4.0
|
<p>I know what probable cause is and how it is used in law/law enforcement. But what does the actual term "probable cause" mean? </p>
<p>In a sentence where it is used like </p>
<blockquote>
<p>"The drug dog's alert gave me <strong>probable</strong> cause to search your vehicle" </p>
</blockquote>
<p>in this case the officer has "<strong>definite</strong> cause" why is probable used? </p>
<p>In the wikipedia definition it says:</p>
<blockquote>
<p>"Probable" in this case may relate to statistical probability or to a general standard of common behavior and customs</p>
<p><a href="https://en.wikipedia.org/wiki/Probable_cause" rel="nofollow">https://en.wikipedia.org/wiki/Probable_cause</a></p>
</blockquote>
<p>But that is also very vague, "statistical probability" or "general standard" <em>of what</em>? Statistical probability of, in the given example, having drugs? How does that relate to giving cause?</p>
<p>It just seems like any way you try to interpret the word "probable" it doesn't make sense, you either have cause to search/arrest/etc. or you don't where is the probability? </p>
| 8,168 |
[
{
"answer_id": 8173,
"body": "<blockquote>\n <p>...in this case the officer has \"<strong>definite</strong> cause.\" Why is <em>probable</em> used?</p>\n</blockquote>\n\n<p>\"Probable cause\" is a <em>standard</em> for when a property search can be conducted or a warrant issued. According to the Wikipedia article you linked to, <em>Ballentine's Law Dictionary</em> defines probable cause as</p>\n\n<blockquote>\n <p>a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true</p>\n</blockquote>\n\n<p>We do not talk about \"definite cause\" because there is no such legal standard. Having \"definite cause\" as you suggest here simply means you have a very strong case to satisfy the legal standard of probable cause. Referring to the above definition, the officer whose drug-sniffing dog alerts at a traffic stop certainly has a \"reasonable amount of suspicion.\" The officer may actually have an <em>incredibly high</em> amount of suspicion, but that's irrelevant to the probable cause standard. It is merely sufficient that the officer's level of suspicion is \"reasonable\" and <a href=\"https://law.stackexchange.com/a/8174/84\">backed by suitable evidentiary circumstances</a>.</p>\n\n<blockquote>\n <p>It just seems like any way you try to interpret the word \"probable\" it doesn't make sense, you either have cause to search/arrest/etc. or you don't where is the probability?</p>\n</blockquote>\n\n<p>The probable cause standard is \"probable\" because it does not impose exacting requirements on law enforcement. (Note that the U.S. Constitution uses \"probable\" slightly differently from its modern meaning; see <a href=\"https://law.stackexchange.com/a/8177/84\">another answer</a>.) It need not be <em>blatantly obvious</em> that a crime is being committed but <em>likely</em> that a crime is being committed. Of course, the exact standard of how likely is <em>likely enough</em> to satisfy the standard of probable cause (and what evidence constitutes a particular threshold of likelihood) is a test for the court to determine.</p>\n",
"score": 4
},
{
"answer_id": 8177,
"body": "<p>To amplify on apsiller's answer, this is an instance of a subtle shift in word connotations over the centuries. These days, \"probable\" has taken on a meaning closer to \"likely\", which is related to frequency of occurrence and is more strongly associated with statistical analysis. Earlier, it was more closely related to \"proof\" as in \"burden of proof\".</p>\n",
"score": 4
},
{
"answer_id": 8174,
"body": "<p>Check out <a href=\"https://supreme.justia.com/cases/federal/us/338/160/case.html\" rel=\"nofollow noreferrer\"><em>Brineger v US</em></a> (1949):</p>\n<blockquote>\n<p>Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.</p>\n</blockquote>\n<p>This is different than <em>reasonable suspicion</em> which is elucidated in <a href=\"https://supreme.justia.com/cases/federal/us/392/1/case.html\" rel=\"nofollow noreferrer\"><em>Terry v Ohio</em></a> (1968):</p>\n<blockquote>\n<p>The term "probable cause" rings a bell of certainty that is not sounded by phrases such as "reasonable suspicion."</p>\n<p>[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"legal-terms"
] |
What crime has someone committed if they "kill" someone who is already dead?
| 11 |
https://law.stackexchange.com/questions/24615/what-crime-has-someone-committed-if-they-kill-someone-who-is-already-dead
|
CC BY-SA 3.0
|
<p>Was watching a police drama (a classic "Taggart" episode) where this was a plotline. </p>
<p>A wife shot her husband while he was "sleeping", and subsequently confessed to his murder. Yet (this being Taggart) it turned out that the husband had actually been dead at the time she shot him, having previously been stabbed by another party. </p>
<p>If this situation were to occur in real life (exceptionally unlikely as this might be), what, if any, crime would the wife have committed? And what punishment would she face? Presumably, she presents as much danger to society as someone who had actually killed their husband would do (since she has proven that she is prepared to kill someone, even if she actually didn't), so if part of the purpose of sending criminals to prison is to remove dangerous people from society, logically there is no more or less of a reason to lock her up than there would be if the husband had been alive when she "killed" him. On the other hand, the other purpose of sending criminals to prison is to get justice for the victims of crime, and in this case, she has not actually committed the crime. </p>
<p>Taggart is set in Scotland, where Scots Law applies, but answers from different legal jurisdictions would be welcome. </p>
| 24,615 |
[
{
"answer_id": 24616,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>In the U.S., this would be attempted murder. While Scotland and the U.S. have laws that differ in many respects, this is not an issue upon which I would anticipate that there would be difference between Scottish law and U.S. law.</p>\n<blockquote>\n<p>And what punishment would she face?</p>\n</blockquote>\n<p>According to <a href=\"https://en.wikipedia.org/wiki/Attempted_murder#Scotland\" rel=\"nofollow noreferrer\">Wikipedia</a>:</p>\n<blockquote>\n<p>Attempted murder is a crime at common law in Scotland. Attempted\nmurder is the same as the offence of murder in Scottish law with the\nonly difference being that the victim has not died. The offence of\nmurder was defined in <em>Drury v HM Advocate</em>:</p>\n<p>“[M]urder is constituted by any wilful act causing the destruction of\nlife, by which the perpetrator either wickedly intends to kill or\ndisplays wicked recklessness as to whether the victim lives or dies.”</p>\n<p>Intention can be inferred from the circumstances of the case. Wicked\nrecklessness is determined objectively and is "recklessness so\ngross that it indicates a state of mind which falls to be treated as\nwicked and depraved as the state of mind of a deliberate killer."\nAs with all common law offences in Scotland, <strong>the maximum punishment\navailable is life imprisonment.</strong></p>\n</blockquote>\n<p>Despite the maximum punishment available, I suspect that the Scottish courts would be more lenient than U.S. Courts in similar circumstances, on average. Sentencing judges have broad discretion and that would be informed by the circumstances and reasoning involved.</p>\n<p>Under U.S. law, in most states, crimes are typically graded into various classes of felonies and lesser crimes (Colorado, for example, has five grades of felonies, and three grades of lesser offenses, with a variety of special enhancements and reductions for particular crimes.) And, attempts are typically one grade lower than the crime attempted, although some U.S. states follow the Scottish rule and treat attempts and the crimes themselves as of the same grade.</p>\n",
"score": 12
},
{
"answer_id": 45170,
"body": "<p>In at least some US states (I suspect most or all of them) this would be attempted murder. <a href=\"https://definitions.uslegal.com/a/attempted-murder/\" rel=\"nofollow noreferrer\">This page from US legal</a> quotes the law from Illinois as typical:</p>\n<blockquote>\n<p>§ 720 ILCS 5/8-4. Attempt</p>\n<p>Sec. 8-4. Attempt. (a) Elements of the Offense. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.</p>\n<p>(b) Impossibility. It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.</p>\n<p>(c) Sentence. A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted ... [There are cases where the sentence is limited, which I omit.]</p>\n</blockquote>\n<p>That law would make it attempted murder, but only if the person had intended to commit murder, which means that the person must have thought that the victim was alive, as suggested in the comment by user supercat.</p>\n<p>I would be surprised if the law in Scotland was very different from this, but I cannot say for sure.</p>\n",
"score": 6
},
{
"answer_id": 33377,
"body": "<p>What you describe would be desecration of a corpse; the <a href=\"http://news.bbc.co.uk/1/hi/scotland/3564627.stm\" rel=\"nofollow noreferrer\">BBC</a> says this is actually a crime in Scotland, but <a href=\"https://www.goodfuneralguide.co.uk/2012/09/abuse-of-a-corpse/\" rel=\"nofollow noreferrer\">the Good Funeral Guide</a> thinks otherwise. Since my knowledge of the relevant Scottish law is no more recent than Burke and Hare, I will leave it as an exercise for the ghoulish student.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"murder",
"scotland"
] |
Is one allowed to operate a live-feed drone on the streets in Japan? (Yakuza Judgement)
| 2 |
https://law.stackexchange.com/questions/90382/is-one-allowed-to-operate-a-live-feed-drone-on-the-streets-in-japan-yakuza-jud
|
CC BY-SA 4.0
|
<p>In Yakuza Judgement, a detective agency often uses a <a href="https://i.stack.imgur.com/TNGNd.png" rel="nofollow noreferrer">quad-copter drone</a> with a camera providing a live feed in the bustling city in Japan. One use they have for it (which is obviously problematic) is to snoop in buildings through windows.</p>
<p>But that usage aside, another way it's used is to remotely monitor one of their agents and provide back-up, without having to actually be there on the scene. Is using a drone like this legal? So long as you're not disturbing the peace and being dangerous, of course.</p>
<p>Since the game takes place in Japan (mainly Tokyo/Yokohama), my question is mainly directed there, but I'm also curious about what the law says about it in the United States, or other countries.</p>
<p>I am in particular reminded of the stories I've heard of <a href="https://i.imgur.com/nXao0Zj.jpg" rel="nofollow noreferrer">disabled students using robots with cameras in order to attend school</a>, which leads me to believe that this must be legal to a certain extent.</p>
| 90,382 |
[
{
"answer_id": 90383,
"body": "<p>in <a href=\"/questions/tagged/japan\" class=\"post-tag\" title=\"show questions tagged 'japan'\" aria-label=\"show questions tagged 'japan'\" rel=\"tag\" aria-labelledby=\"tag-japan-tooltip-container\">japan</a> operation of an unmanned airborne vehicle, aka UAV, aka Drone, inside a city might be legal, <a href=\"https://uavcoach.com/drone-laws-in-japan/\" rel=\"nofollow noreferrer\">if a special license is obtained</a>:</p>\n<blockquote>\n<p>Drones may not be flown in the following manners <strong>without special permission from the Minister of Land, Infrastructure, Transport and Tourism</strong>: 150 meters (492 feet) above ground level; near airports; <strong>above densely inhabited areas</strong>, as defined by the Ministry of Internal Affairs and Communications.</p>\n</blockquote>\n<p>This means in reverse, that you could have such a special license, but that license needs to be obtained for each operation 10 days prior, may only be done in daytime <strong>and</strong> within line of sight between drone and operator. However, city centers are densily inhabited areas, so the default is banned.</p>\n<p>However, in the countryside, flying a UAV does not require a special license, as long as the <a href=\"https://www.mlit.go.jp/en/koku/uas.html\" rel=\"nofollow noreferrer\">general other rules</a> are followed (150 m above ground, 30 meters of any obstacle, daytime only, line of sight, etc). Among the requirements is also a total ban on alcohol at the control.</p>\n<p>As a result, the operation as depicted is not lawful under the ordinary laws as they operate in our world, unless the drone operator has special permit.</p>\n",
"score": 6
}
] |
[
"united-states",
"recording",
"japan",
"drones"
] |
Are encryption apps (iOS) exempt from US Export Regulations if released to the US App Store only?
| 4 |
https://law.stackexchange.com/questions/15106/are-encryption-apps-ios-exempt-from-us-export-regulations-if-released-to-the-u
|
CC BY-SA 3.0
|
<p>Note: The original question in iTunes Connect regarding exemptions has since been changed to reflect recent changes made to their FAQ as follows:</p>
<blockquote>
<p>Does your app meet any of the following: (a) Qualifies for one or more
exemptions provided under category 5 part 2, (b) Use of encryption is
limited to encryption within the operating system (iOS or macOS), (c)
Only makes call(s) over HTTPS, (d) App is made available only in the
U.S. and/or Canada.</p>
</blockquote>
<p><strong>TL;DR</strong> - In short, the answer to my original question per Apple Export Compliance is yes, "(under option d), encryption apps are now exempt from Export Regulations if sold in the U.S. and Canada app stores <em>exclusively</em>."</p>
<hr>
<p>I have an iOS app built and ready to ship which allows the user to perform symmetric encryption using arbitrary length keys (i.e. > 56 bits).
I've been reading up on US export regulations and am looking to extend my research here as well.</p>
<p><strong>Question:</strong> If I have an iOS app that performs <a href="http://isilonsystems.org/emc-plus/rsa-labs/standards-initiatives/cryptography-export-controlled.htm" rel="nofollow noreferrer">"strong" encryption</a> but I only make it available to <a href="https://developer.apple.com/library/content/documentation/LanguagesUtilities/Conceptual/iTunesConnect_Guide/Appendices/AppStoreTerritories.html" rel="nofollow noreferrer">select territories</a> (i.e. US), can I answer "Yes" to the following question?</p>
<blockquote>
<p><strong>Does your app qualify for any of the exemptions provided in Category
5, Part 2 of the U.S. Export Administration Regulations?</strong></p>
<p>Make sure
that your app meets the criteria of the exemption listed here. You are
responsible for the proper classification of your product. Incorrectly
classifying your app may lead to you being in violation of U.S. export
laws and could make you subject to penalties, including your app being
removed from the App Store. Read the FAQ thoroughly before answering
the questions.</p>
<p>You can select Yes for question #2 if the encryption of your app is:</p>
<ul>
<li>(a) Specially designed for medical end-use</li>
<li>(b) Limited to intellectual
property and copyright protection</li>
<li>(c) Limited to authentication,
digital signature, or the decryption of data or files</li>
<li>(d) Specially
designed and limited for banking use or "money transactions"; or</li>
<li>(e)
Limited to "fixed" data compression or coding techniques</li>
</ul>
<p>You can also select Yes if your app meets the descriptions provided in
Note 4 for Category 5, Part 2 of the U.S. Export Administration
Regulations.</p>
</blockquote>
<p>I should also point out that it's quite possible (and perhaps easy) to VPN into the US to download an app only being sold within the US and I guess this is where my main question lies - is this considered "exporting" and thus subject to US Export regulations as well?</p>
| 15,106 |
[
{
"answer_id": 15146,
"body": "<p><strong>Update (12/2/16)</strong> - Just received the following confirmation from Apple Export Compliance:</p>\n\n<blockquote>\n <p>The [redacted] app presently uploaded into your account CAN BE legally\n released to US and Canada only, it will not be necessary to go through\n Export Regulations.</p>\n</blockquote>\n\n<p>They have also rephrased the question \"Does your app qualify for any of the exemptions...?\" to the following: </p>\n\n<blockquote>\n <p>Does your app meet any of the following: (a) Qualifies for one or more\n exemptions provided under category 5 part 2, (b) Use of encryption is\n limited to encryption within the operating system (iOS or macOS), (c)\n Only makes call(s) over HTTPS, (d) App is made available only in the\n U.S. and/or Canada.</p>\n</blockquote>\n\n<hr>\n\n<p><strong>Update (12/1/16)</strong> - In addition to the research below, a list of \"Sample Scenarios\" are given in <em>iTunes Connect Resources and Help</em>, one of which states:</p>\n\n<blockquote>\n <p>A developer chooses to release his app in the U.S. and\n Canada only.\n -- No U.S. CCATS or ERN is required. No France Import Declaration is required.</p>\n</blockquote>\n\n<p>The following statement (mentioned earlier in the same page) should also be taken into consideration regarding exemptions:</p>\n\n<blockquote>\n <p>All liabilities associated with misinterpretation of the export\n regulations or claiming exemption inaccurately are borne by owners and\n developers of the apps.</p>\n</blockquote>\n\n<hr>\n\n<p>So it appears the correct answer is <em>likely not</em>:</p>\n\n<blockquote>\n <p><strong>N.B. to Note 3 (Cryptography Note):</strong> You must submit a classification request or self classification report\n to BIS for mass market encryption commodities and software eligible\n for the Cryptography Note employing a key length greater than 64 bits\n for the symmetric algorithm ... in accordance with the requirements of § 740.17(b) of the EAR in order to be released from the “EI” and “NS” controls of ECCN 5A002 or 5D002.</p>\n</blockquote>\n\n<p>Furthermore, under <em>Note 4</em>:</p>\n\n<blockquote>\n <p>Category 5 - Part 2 does not apply to items incorporating or\n using \"cryptography\" and meeting all of the following:</p>\n \n <p>a. The primary\n function or set of functions is not any of the following:</p>\n \n <ol>\n <li>“Information security”;</li>\n <li>A computer, including operating systems, parts and components therefor;</li>\n <li>Sending, receiving or storing information (except in support of entertainment, mass commercial broadcasts, digital rights management\n or medical records management); or</li>\n <li>Networking (includes operation, administration, management and provisioning);</li>\n </ol>\n \n <p>b. The cryptographic functionality is limited to\n supporting their primary function or set of functions; and</p>\n \n <p>c. When\n necessary, details of the items are accessible and will be provided,\n upon request, to the appropriate authority in the exporter's country\n in order to ascertain compliance with conditions described in\n paragraphs a. and b. above.</p>\n</blockquote>\n\n<p>I suppose there could be clarification under this note, but if I understand it correctly, an iOS app having the sole purpose of performing symmetric encryption with keys greater than 56 bits would have the <em>primary function</em> of:</p>\n\n<ul>\n<li>\"Information security\"</li>\n<li>Being \"a computer\"</li>\n</ul>\n\n<p>Barring clarification on these points that would qualify for exemption, NLR, etc. self-classification would likely be [any of the following]:</p>\n\n<ul>\n<li><strong>5D002.a.1.a</strong> (software) - Designed or modified to use \"cryptography\" employing digital techniques performing any cryptographic function other than authentication, digital signature, or execution of copy-protected \"software,\" and having ... A \"symmetric algorithm\" employing a key length in excess of 56-bits</li>\n</ul>\n\n<p>Encryption registration may have also been required <em>prior to</em> September 20, 2016 (see linked reference). \"Companies no longer are required to submit an encryption registration to BIS before self-classifying and exporting certain encryption items...\" (Wiley Rein LLP)</p>\n\n<p>References:</p>\n\n<ul>\n<li><a href=\"https://www.bis.doc.gov/index.php/documents/regulations-docs/federal-register-notices/federal-register-2014/951-ccl5-pt2/file\" rel=\"nofollow noreferrer\">Commerce Control List: Category 5 Part 2 (Cryptographic \"Information Security\")</a> - BIS</li>\n<li><a href=\"https://f5.com/about-us/policies/export-compliance\" rel=\"nofollow noreferrer\">Export Compliance</a> - f5</li>\n<li><a href=\"https://www.bis.doc.gov/index.php/forms-documents/encryption/98-license-exception-enc/file\" rel=\"nofollow noreferrer\">License Exception ENC (740.17)</a> - BIS</li>\n<li><a href=\"https://www.bis.doc.gov/InformationSecurity2016-updates\" rel=\"nofollow noreferrer\">Information Security Updates (September 20, 2016)</a></li>\n<li><a href=\"http://www.wileyrein.com/newsroom-articles-BIS-Publishes-New-Encryption-Rule.html\" rel=\"nofollow noreferrer\">BIS Publishes New Encryption Rule</a> - Wiley Rein LLP</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 17839,
"body": "<p>I had to appeal the decision.\nStating: \nI answered Yes to Question 2 because the app was only being released\nin Canada and the US. </p>\n\n<p>(Company Name) only intends to release the app “(app name)” in the U.S. and Canada. We will produce the approval documents in case we happen to release the app in other countries at a later point. </p>\n\n<p>I also added a document to the appeal stating the same on official stationary. </p>\n\n<p>The appeal was reviewed and accepted!</p>\n",
"score": 1
},
{
"answer_id": 15123,
"body": "<p>If your app doesn't qualify for some exemption then it doesn't qualify. If it's sold in the USA only, then you may not <em>need</em> to qualify for the exemption, but claiming you <em>do</em> qualify would be a lie.</p>\n<p>There's also the problem that people can be outside the USA and buy from the US app store. First, American residents with a US account on holiday outside the USA. Second, non-residents who somehow managed to sign up to a US account. So if you lied about qualifying for an exemption, and for these reasons you are not allowed to sell at all, then lying might get you into trouble.</p>\n<p>PS. Don't know why this question came up 6 years later, but also look at "(b) Use of encryption is limited to encryption within the operating system (iOS or macOS), (c) Only makes call(s) over HTTPS" so you are free to use any encryption method provided by iOS or macOS, but not something else you or someone else created, and you are free to use https, which encrypt data transmitted over the internet.</p>\n",
"score": 0
}
] |
[
"united-states",
"legal-terms",
"encryption",
"export",
"sanctions"
] |
The arrow shown on the bicycle lane sign
| 2 |
https://law.stackexchange.com/questions/90385/the-arrow-shown-on-the-bicycle-lane-sign
|
CC BY-SA 4.0
|
<p>There is an arrow on the following <a href="https://en.m.wikipedia.org/wiki/File:Canada_Reserved_Bicycle_Lane_Shoulder_Sign.svg" rel="nofollow noreferrer">bicycle lane</a> sign. What does it mean? Thank you!</p>
<p><a href="https://i.stack.imgur.com/kVG4p.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/kVG4p.png" alt="enter image description here" /></a></p>
| 90,385 |
[
{
"answer_id": 90386,
"body": "<p>This simply indicates that the lane the arrow is pointing to is reserved for the use of bicycles. Typically such a sign would be mounted on a pole near the curb, so that the arrow would point to the rightmost lane of the road.</p>\n<p><a href=\"https://i.stack.imgur.com/6dosu.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/6dosu.jpg\" alt=\"enter image description here\" /></a></p>\n<p>Another version of the sign exists with an arrow pointing straight down. This one is designed to be mounted on a cantilevered pole, so that it is directly above the bike lane in question.</p>\n<p><a href=\"https://i.stack.imgur.com/MQi0M.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/MQi0M.jpg\" alt=\"enter image description here\" /></a></p>\n<blockquote>\n<p>Where the bicycle lane is immediately adjacent\nto the curb, the ground-mounted version of the Reserved Bicycle Lane sign (Rb-84A OTM) should be installed. In cases where the bicycle lane is not adjacent to the curb, such as when a parking lane is present, the overhead mounted version of the Reserved Bicycle Lane sign (Rb-84 OTM) may be considered. If used, the overhead sign should be installed on a cantilever and centred above the designated lane, every 200 m or where visibility obstructions warrant. The cantilevered signs are not required after every intersection.</p>\n</blockquote>\n<p>(All images and quotes taken from the <a href=\"https://www.library.mto.gov.on.ca/SydneyPLUS/Sydney/Portal/default.aspx?component=AAAAIY&record=9c49ce44-e3b2-4389-91cd-5e9b67aad03d\" rel=\"noreferrer\">Ontario Traffic Manual</a>.)</p>\n",
"score": 5
}
] |
[
"canada",
"traffic"
] |
Is copying from How to Draw books copyright infringement?
| 1 |
https://law.stackexchange.com/questions/21202/is-copying-from-how-to-draw-books-copyright-infringement
|
CC BY-SA 3.0
|
<p>Suppose I want to draw a horse. I don't know how to draw a horse so I buy a How to Draw Animals book and follow the instructions of the book to draw a horse. Now can I use my drawing for commercial purposes?</p>
| 21,202 |
[
{
"answer_id": 21205,
"body": "<p>The book teaches you how to draw horses. Once you learned how to do it, and you draw a really nice horse, <strong>you</strong> have drawn it yourself. You have the copyright. You use it any way you like.</p>\n<p>Of course it's different if instead of drawing the horse yourself you just make a copy of an image in the book. That would be the author's copyrighted drawing.</p>\n<p>Added since the question reappeared: One way to learn drawing horses is to start by making copies by hand of others' good drawings, practicing, practicing more, until eventually you can draw your own horses, which was the purpose of the book. So these copies made as part of the learning process might be treated differently. And the might not actually be copies, just your best attempt at making a copy.</p>\n<p>On the other hand, taking this book, making ten copies using a scanner, framing and selling them, is obvious copyright infringement.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
Does the law make any distinction in any context between garments intended to be undergarments and others not so intended?
| 1 |
https://law.stackexchange.com/questions/85268/does-the-law-make-any-distinction-in-any-context-between-garments-intended-to-be
|
CC BY-SA 4.0
|
<p>If one goes out in gym shorts without anything underneath or in "boxer shorts" identifiable by their polkadots or plaid designs, and they both cover the same areas (genitals), neither of these is indecent exposure under s66 Sexual Offences Act 2003 but some may view the latter as more objectionable or obscene in certain settings. Does the law ever in any circumstances distinguish between garments on the basis of their designer's apparent intended purpose for them?</p>
| 85,268 |
[
{
"answer_id": 85293,
"body": "<h2>The crime is intentionally exposing one’s genitals with intent …</h2>\n<p>If the person conceals their genitals it doesn’t matter what they conceal them with.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"sexual-offences"
] |
What does it mean that the RPT tribunal member in this case was “also sitting as a district judge of the county court”?
| 1 |
https://law.stackexchange.com/questions/90374/what-does-it-mean-that-the-rpt-tribunal-member-in-this-case-was-also-sitting-as
|
CC BY-SA 4.0
|
<p>In <a href="https://assets.publishing.service.gov.uk/media/638875a9d3bf7f3282be405e/47_Westow_St_deployment_s27A_decision_1-12-22.pdf" rel="nofollow noreferrer">this case</a> one of the tribunal judges is indicated as having been sitting as a judge of the county court, even though the claim had been brought in the first tier tribunal of residential property.</p>
<p>How did this come about, what exactly does it mean, and what enabled them to sit as a judge of the county court?</p>
| 90,374 |
[
{
"answer_id": 90376,
"body": "<p>This is explained at paragraphs 2-4 of <a href=\"https://assets.publishing.service.gov.uk/media/638875a9d3bf7f3282be405e/47_Westow_St_deployment_s27A_decision_1-12-22.pdf\" rel=\"nofollow noreferrer\">the decision you link</a>.</p>\n<ul>\n<li>There were two proceedings: a claim in the county court and an application to the Tribunal.</li>\n<li>The county court claim was transferred to the Tribunal to be consolidated with the application, and they were to be heard together. (Although, technically there should be no literal "transfer" or "consolidation"; the claim is always a county court claim, separate from the tribunal application. It is just that the matters are heard at the same occasion by inviting a tribunal judge to sit in their capacity as a county court judge. See <a href=\"https://www.falcon-chambers.com/news/upper-tribunal-explains-the-procedure-for-double-hatting\" rel=\"nofollow noreferrer\">commentary</a> on <em>City, University of London v. Vodafone Limited</em> (2020).)</li>\n</ul>\n<p>In that circumstance, <a href=\"https://www.nicholasnicol.uk/about-1/\" rel=\"nofollow noreferrer\">Judge Nicol</a> was sitting as both a tribunal judge and as a county court judge. This is possible because:</p>\n<blockquote>\n<p>On 22 April 2014, the Crime and Courts Act 2013 Sch.9(1) para. 4 was brought into force, providing that judges of the First-tier Tribunal are judges of the county court and therefore able to exercise the jurisdiction of the county court, providing that a claim form has been issued and the matter has been listed for hearing by them.</p>\n<p>Stephen Jourdan, K.C., "<a href=\"https://www.falcon-chambers.com/images/uploads/articles/FTT_Judges_sitting_as_county_court_judges_-_SJ_01.19_.pdf\" rel=\"nofollow noreferrer\">FTT Judges sitting as judges of the county court</a>" (January 2019)</p>\n</blockquote>\n<p>See also this <a href=\"https://law.stackexchange.com/a/89617/46948\">previous Q&A</a> where this was explained.</p>\n",
"score": 4
}
] |
[
"england-and-wales",
"civil-procedure",
"judge",
"tribunal",
"tribunal-procedure"
] |
Is a Tenant Entitled to a Jury Trial in an Eviction Case?
| -1 |
https://law.stackexchange.com/questions/90060/is-a-tenant-entitled-to-a-jury-trial-in-an-eviction-case
|
CC BY-SA 4.0
|
<p>Is a tenant entitled to request a jury trial?</p>
<p>If yes, does it matter if the tenant is being evicted for nonpayment of rent vs. the Summary Dispossess Act in an owner occupied premises?</p>
| 90,060 |
[
{
"answer_id": 90378,
"body": "<p>Usually there is not a right to a jury trial in a possession hearing. This is in part because the possession hearing is preliminary, with a hearing that addresses matters such as damages in a final hearing. But, once a tenant has been evicted, the possession question becomes moot.</p>\n",
"score": 1
}
] |
[
"united-states",
"court",
"jury",
"new-jersey",
"eviction"
] |
Who can ask the judge to interpret a paragraph of his court judgement, in uk?
| 1 |
https://law.stackexchange.com/questions/67114/who-can-ask-the-judge-to-interpret-a-paragraph-of-his-court-judgement-in-uk
|
CC BY-SA 4.0
|
<p>The appeal judge states:</p>
<ol>
<li>The county court judge decided based on arguments that are plainly available to her.</li>
<li><strong>The county court judge fell into error</strong> in concluding that the non-delegable nature of the Defendant’s duty to the Claimant was somehow relevant to the Part 20 claim.</li>
<li>Had the Defendant considered that the county court judge reasons were inadequate then the proper course would have been to ask the county court judgment to provide further reasons in accordance with the guidance set out in <em><strong>English v Emery Reimbold & Strick Ltd</strong></em> [2002] W.L.R. 2409. The defendant advisors would have had plenty of time in which to do this because the county court judgment was circulated in draft form to all the parties more ten weeks before it was eventually handed down.</li>
<li>The trial barrister failed to present arguments to the county court judge, that the appeal barrister presented in the appleallate hearing.</li>
<li>The county court judge may have been persuaded to have reached a different conclusion had she had the advantage of the arguments presented before me on this appeal but that is not to the point.</li>
<li>The Defendant cannot now be heard to complain that if the case had been differently presented below then he may have won. So long as the Judge’s conclusion was consistent with the evidence then her decision must stand. It was and it does. This appeal is dismissed.</li>
</ol>
<p>Who can ask the judge to interpret this judgement: who is responsible?
The first barrister or the defendant?
If the first barrister, can the defendant claim for barrister professional negligence?</p>
| 67,114 |
[
{
"answer_id": 67116,
"body": "<p>The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound.</p>\n<p>It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal.</p>\n<p>If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister.</p>\n<p>In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc.</p>\n",
"score": 3
},
{
"answer_id": 67194,
"body": "<h1>The original hearing</h1>\n<p>In the <strong>original hearing</strong> (the trial hearing), you employed a barrister to argue that someone else should compensate you or do something, because of some matter they did wrong.</p>\n<p>Now, <strong>law is not magic</strong>. Like many other things in life, its up to the Claimant to make their own arguments, and they can do it well or badly. They can employ/engage a legal team who are on the ball or fluff it. A star team or Joe & Co their family usually uses. They can by chance have a judge who is more inclined to be sympathetic or skeptical of their character or testimony, or the experts/witnesses (if any). They and their team can choose brilliant or weak tactics. They can find their opponents are also on the ball or present the defence case poorly. And so on.</p>\n<p>Crucially, like many other things in life, <strong>it is how it is</strong>. If your team do badly or miss a key play, you don't get to automatically have a rematch, even if it's wrong or unfair. You stand or fall, by what happens in court , on the day. If the law was applied reasonably and appropriately, then by and large <strong>one shot is all you get, to make your point</strong>.</p>\n<p>You might as well ask for the Cup Final to be replayed because in hindsight during after-match analysis or chatting at the pub, you realise that somehow you or the captain didn't think about tasking a team member with marking the right person, didn't substitute the sick player by a more prepared one, or the team missed a key play on the day. "We'd clearly have been able to win with ease, if Player B had replaced player A, or we'd chosen tactic B instead of tactic A, or if the team had played to their usual/expected standard, so we want a rematch with those changes". <strong>It just doesn't happen</strong>. That was the day, and that was your hearing.</p>\n<h1>Dissecting and understanding the appeal ruling</h1>\n<p>When you appeal, by and large, you are asking a senior judge, <em>"I think the trial judge made a ruling that couldn't possibly be what the law says, or was so unreasonable and perverse an outcome that no judge hearing what they heard, seeing what they saw, could fairly reach that decision within the law. These are our arguments why that's so, please review if they followed the law and did so in a way that was reasonable, based on what was shown and presented"</em>.</p>\n<p><strong>So an appeal isn't a retrial. Its a pure review of the decision making aspect</strong>, in which you argue the decision process just doesn't match either the evidence and facts presented, and/or the applicable law.</p>\n<p>With that in mind, we can understand what the appeal judge is saying, and answer your questions. The appeal judge is saying, that:</p>\n<ol>\n<li>Based on what was presented on the day, the other judge did reach a reasonable decision. (1)(3).</li>\n<li>You've also tried (via your new barrister) to re-argue the case in front of the appeal judge, and proposed new arguments why you should have won on the day. (2)</li>\n<li>They were good arguments. If you'd made those arguments on the day, when the trial case happened, then quite possibly the judge would have reached a different decision on the day. But you (via your original barrister) didn't argue them on the day, and you can't rewrite that. You had your day in court and you evidently have now found you could have used it better. But that day can't be rerun after it's over. Those new arguments, just aren't relevant any more, because this hearing is about reviewing the judges decision process and <strong>based on what happened on that day</strong> the judge didn't make any obvious error.(3)(4)</li>\n<li>Translating from legalspeak: <em>"I sympathise but I'm sorry, you can't rerun your case, just because your team didn't play its cards to best effect on that day. Provided the judge did their job without obvious error on that day, after hearing the evidence they did,there's nothing to correct or change, in an appeal of the decision making process, so it stands, we don't have anything that can be successfully appealed."</em> (4)</li>\n</ol>\n<h1>With that, we can answer your questions</h1>\n<blockquote>\n<p>Who can ask the judge to interpret this judgement</p>\n</blockquote>\n<p>You can ask your solicitor or barrister, or anyone you like, to interpret the appeal ruling. But I've done so here, and that's roughly what they'd say. In legal terms its clear what it is saying. Nobody will tell you much differently, so you can save your money.</p>\n<blockquote>\n<p>Who is responsible? The first barrister or the defendant? If the first barrister, can the defendant claim for barrister professional negligence?</p>\n</blockquote>\n<p>Ultimately the client chose the team. It was their case, and they decided whose hands to use to present it, as well as other decisions on the way.</p>\n<p>A solicitor or barrister can be sued for negligence,if the client feels they didn't execute that agreed work, to a proper professional standard. The claim would be that they so mishandled your case and its presentation, based on what they knew, that no competent solicitor/barrister could reasonably have acted that poorly, unprofessionally, or ignorantly.</p>\n<p>So yes you can.</p>\n<p>I should warn you that this is a very demanding goal to prove. The fact they made professional decisions how to handle it, or that some arguments arose afterwards and weren't made originally, or weren't made forcefully enough to convince, <strong>is not enough to automatically prove negligence</strong>. People (or their legal advisers) often think of arguments later, when its too late, and your case may be one of those, <strong>and that's not automatically negligent</strong>.</p>\n<h1>Comments and words of advice</h1>\n<p>There is a <strong>huge</strong> difference between "They could have argued it better,or presented some extra and key arguments" and "They prepared and/or argued it plain incompetently". An analogy might be, that just because a builder didn't build an award winning top notch house, with all features, doesn't mean they built a distinctly bad or unsafe one. You chose who to represent you, and, like your opponents, like a cup final team manager, you live or die, on the day of the original trial hearing, by the choice you made, and how your chosen team play when it counts. Sorry if that's harsh and feels totally unfair, but that's how it works.</p>\n<p><strong>You sound like you're at a point where you may be inclined to throw a lot of good money after bad</strong>.</p>\n<p>If you did decide to go down this road, then there are 3 pieces of advice I'd give.</p>\n<ol>\n<li>The best person to ask, will be your appeal barrister. Ask them this one question - <em>do they feel the original case was handled or argued negligently?</em></li>\n<li><strong>Accept their answer</strong>. If they say no, or probably not, or doubtful, then <strong>walk away</strong>. You will almost certainly not have a good enough argument to convince another judge that the high standard for negligence was met.</li>\n<li><strong>Only if they give an unqualified "yes" or "very likely", consider possibly continuing</strong>.</li>\n</ol>\n<p>If that happens - and most times it <strong>won't</strong> be the answer they give - the followup questions would be <em>"is it a good enough case that you'd recommend claiming?"</em>, and then, <em>"How would I proceed, and what's involved?"</em></p>\n<p>(And, if they don't themselves offer, ask them if they'd take the case: they are already familiar with it, and they have already shown they can identify and present the new arguments to the appeal court well enough that the appeal court judges agree that it may have have made a difference if it had been presented at the original trial case).</p>\n",
"score": 3
},
{
"answer_id": 67195,
"body": "<p>The operative part of the judgement is "This appeal is dismissed."</p>\n<p>Everything else is mere window dressing.</p>\n<p>It is simple and unambiguous and is interpreted only by the people trying to carry out the affirmed judgment, whatever that may have been. A barrister who failed to correctly interpret that ruling and other rulings like it would quickly find himself or herself stripped of membership in the profession.</p>\n",
"score": 1
}
] |
[
"england-and-wales"
] |
Can two people be tried together?
| 11 |
https://law.stackexchange.com/questions/90316/can-two-people-be-tried-together
|
CC BY-SA 4.0
|
<p>Bob and Carl are both accused of the same murder of Alice. Are they supposed to</p>
<ol>
<li>be tried together as one party in a single trial?</li>
<li>be separately tried in two simultaneous trials?</li>
<li>be tried one after another?</li>
<li>or what?</li>
</ol>
<p>(2.) seems the most correct, as Bob and Carl are separate parties that may want different lawyers, etc.. But that also seems the most hairy path, since the crimes are obviously extremely related, and each case would rely heavily upon the other.</p>
<p>As a separate but related question: if an entire family/group are accused of crimes, are they all tried separately, simultaneously, or what?</p>
| 90,316 |
[
{
"answer_id": 90326,
"body": "<p>In the U.S., one trial can be held for multiple co-defendants, though prosecutors and defense attorneys will have reasons for seeking separate trials (If only to avoid having a scene similar to the on in Dark Knight where Harvey Dent has about 50 mobsters caught in one RICO violation plus their lawyers and the judge's simple question of "How do you plea?" is met with a din of responses.).</p>\n<p>The Defense's reason for this is that an individual may not have been a part of every step of the collective guilt and thus some charges might not be appropriate if it's an individual's guilt compared to a groups guilt. For example, the six police officers involved in the 2015 death of Freddie Gray at trial were all tried separately. The first trial was declared a mistrial over the hung jury, and two subsequent trial's resulted in findings of not guilty by a judge during a bench trial. The remaining individuals had charges dropped (The three officers who had yet to have trials plus the one officer whose trial resulted in a mistrial). One of the findings a running theme of the officers as individuals did nothing wrong, though had they been tried collectively, the results may have been different, since the individual trials meant certain facts couldn't be brought up as they didn't apply to the individual but did if they were tried as a group.</p>\n<p>From a prosecutor's standpoint, separate trials mean that you can use one suspect against the other and make a deal for lighter charges in exchange for testimony against a partner in crime. The U.S. legal system does allow for plea deals between the defense and prosecution (and while it's not the only nation that allows this, it's one of the few where plea bargaining is not viewed as a "dirty" tactic and is openly embraced (U.S. attorneys tend to hate going to trial and will try to avoid it.). Prosecutors are not above offering immunity or granting lighter sentences in exchange for help in other cases, often in the form of testimony against the big fish. For a criminal who believes "snitches get stitches", an offer of flipping on your co-defendant for a sentence of 10 years, with parole in 5 is nothing to sneeze at when you're looking at 25 to life without parole for what you did. It's not immunity for testimony (typically, witnesses in plea bargains are not allowed to take the 5th with respect to questions on the stand because they will typically plea before the trial, and thus can't be prosecuted for the same crime.).</p>\n",
"score": 11
},
{
"answer_id": 90321,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>"Ordinarily, persons alleged to be involved in a common enterprise should be jointly tried." <em>R. v. Anderson-Wilson</em>, 2010 ONSC 489 at <a href=\"https://canlii.ca/t/27sk6#par65\" rel=\"noreferrer\">para 65</a>.</p>\n<blockquote>\n<p>There are strong policy reasons for this principle: joint trials enhance the truth-finding exercise and preclude the possibility of inconsistent verdicts; they spare all those concerned, and ultimately the community, the expense (financial and emotional), inconvenience to witnesses, and institutional stress associated with multiple trials of the same issues.</p>\n<p><em>R. v. Sarrazin</em>, 2005 CanLII 11388 (Ont. C.A.) at <a href=\"https://canlii.ca/t/1k54n#par59\" rel=\"noreferrer\">para 59</a>.</p>\n</blockquote>\n<p>But an accused can apply to the court to be tried separately. <em>Criminal Code</em>, s. 591(3) gives the court discretion to order "that one or more of them be tried separately on one or more of the counts."</p>\n",
"score": 10
},
{
"answer_id": 90375,
"body": "<p>There is another situation where a joint trial is relevant (I'm sorry I don't have a reference to this case: I encountered it years ago in a book by a retired Australian judge).</p>\n<p>Defendants A, B, and C were off-duty servicemen, who had been drinking in a pub; defendants D, E, F, G were drinking in the same pub, and took a dislike to Abel, Baker, and Charlie. After an exchange of insults, and maybe the odd punch, Abel, Baker, and Charlie drove off in their car, pursued by David, Eric, Frankie, and George. At some point they collided with another vehicle, killing at least one innocent third party, Zelda.</p>\n<p>Abel, Baker, and Charlie were clearly in the wrong, as they were speeding, and either driving on the wrong side of the road or through a red light (I have forgotten). The obvious defence was that they were fleeing in fear for their lives. Their lawyer felt that any red-blooded juror would insist on <em>someone</em> being punished for Zelda's death, so he argued that Abel, Baker, Charlie, David, Eric, Frankie, and George be jointly tried; naturally David, Eric, Frankie, and George's lawyer argued unsuccessfully for separate trials.</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"court",
"rules-of-court",
"trial"
] |
Are banks committing the crime of deceptive marketing?
| -4 |
https://law.stackexchange.com/questions/90366/are-banks-committing-the-crime-of-deceptive-marketing
|
CC BY-SA 4.0
|
<p>As depositors of Silicon Valley Bank are painfully finding out, money in a checking account is not exactly the same as dollar bills in your wallet.</p>
<p>Money in a checking account are effectively overnight loans to the bank, which are automatically renewed daily, until withdrawn.</p>
<p>The bank borrows money from you, on an overnight basis, and then invests these money in long-duration assets such as 10 year government bonds.</p>
<p>A bank failure happens when the bank's assets have declined in real-time market value such that those assets can no longer be sold to fulfill all overnight withdrawal requests.</p>
<p>However, the entire global economy functions on the implicit assumption that checking accounts are in fact the same thing as dollar bills in your wallet.</p>
<p>When I login to my bank account online, I see a certain number of dollars. These dollars are presented to me as readily available "cash under the mattress". Unbeknowst to me, these dollars are not readily available. They have been invested into illiquid long duration assets, such as 30 year mortgages at 3.5% rate of interest, far below the current overnight interest rate of 4.5%.</p>
<p>Throughout the process of setting up the checking account, signing the paperworks, it was not made clear to me that my "readily available" cash deposit was actually a loan to the bank. And that, in the event of a bankruptcy, no pun intended, amounts above 0.25 million would be considered as a loan to the bank, payable only up to the amount realized from the fire sale of the bank's remaining paltry assets, minus lawyer fees.</p>
<p>Many highly influential figures in the financial space are right now calling for a taxpayer funded bailout of SVB overnight deposits. Failing which, they claim, would result in a loss of confidence in thousands of small banks.</p>
<p>Question: Is the practice described above, to wit: representing overnight loans that are backed by duration mismatched assets as a form of "bailment", and marketing a bank's services as such, a form of deceptive advertising?</p>
| 90,366 |
[
{
"answer_id": 90373,
"body": "<h2>No</h2>\n<p>The bank is not pretending in any way that the money received from depositors is guaranteed. If they had done, then that would be deceptive marketing.</p>\n<p>The bank held itself out to be a bank and to provide the services that a bank provides. They are allowed to assume that their customers know how banking works. It is clear that you do not because both explanations you have provided are wrong.</p>\n",
"score": 5
},
{
"answer_id": 90367,
"body": "<p>It could be that some, or even many, customers do not understand the nature of the banking system they use. But the facts are readily available for people who read the fine print. Customers should make themselves aware if their <a href=\"https://en.wikipedia.org/wiki/Deposit_account\" rel=\"nofollow noreferrer\">deposits</a> are <a href=\"https://en.wikipedia.org/wiki/Federal_Deposit_Insurance_Corporation\" rel=\"nofollow noreferrer\">insured</a> or not, if the sums they handle reach the limits of such insurance schemes.</p>\n<p>If you want to interpret deposits as mis-advertised loans, you are denying the financial system <em>and the legal system</em> the ability to have special rules for deposits. But such rules are necessary. Have you noticed how quickly the FDIC did act to make the insured deposits available again? If deposits <strong>were</strong> loans, payouts would be at the end of drawn-out bankruptcy proceedings ...</p>\n",
"score": 4
},
{
"answer_id": 90368,
"body": "<p>The concept of bailment is limited to tangible property. This is well-established common-law principle, but see generally Dickerson, "<a href=\"https://scholarship.law.vanderbilt.edu/vlr/vol41/iss1/4/\" rel=\"nofollow noreferrer\">Bailor Beware</a>" (1988).</p>\n<p>As far as I can tell, banks are not misleading when they accept your deposits as creating a liability for them. And in my experience, banks clearly advertise whether your deposits are FDIC insured and the extent of that insurance. For example: <a href=\"https://www.svb.com/fdic\" rel=\"nofollow noreferrer\">https://www.svb.com/fdic</a></p>\n",
"score": 4
}
] |
[
"banking"
] |
Millions of people suddenly disappear without a trace. Legally speaking, are they dead?
| -2 |
https://law.stackexchange.com/questions/90213/millions-of-people-suddenly-disappear-without-a-trace-legally-speaking-are-the
|
CC BY-SA 4.0
|
<p>Millions of people around the world provably and literally vanish at exactly the same moment. Their bodies simply no longer exist instantaneously. In many cases, this is witnessed, quite often by large numbers of people.</p>
<p>Are the people who disappeared considered "dead" legally, e.g. for the purpose of succession or vital records? Are death certificates issued? I'm interested in answers for any jurisdictions.</p>
<p>I'm interested in cases where there is an existing law that clearly applies to this scenario, not in speculation as to how courts will rule or what new laws legislatures might pass in jurisdictions that have no relevant laws.</p>
| 90,213 |
[
{
"answer_id": 90216,
"body": "<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a><sup>(*)</sup> (and I would guess all over the world) there are no special laws for people vanishing in any science fiction/movie style. The general laws about missing persons would apply.</p>\n<p>Without any body or other evidence to prove a person is dead, they are not dead in the eyes of the law.</p>\n<p>To be missing and later declared dead legally, you have to be "verschollen" first. This is what "Verschollenheitsgesetz (VerschG)" is about.</p>\n<blockquote>\n<p>Verschollen ist, wessen Aufenthalt während längerer Zeit unbekannt ist, ohne daß Nachrichten darüber vorliegen, ob er in dieser Zeit noch gelebt hat oder gestorben ist, sofern nach den Umständen hierdurch ernstliche Zweifel an seinem Fortleben begründet werden.</p>\n</blockquote>\n<p>Translated:</p>\n<blockquote>\n<p>A missing person is one whose whereabouts are unknown for a long period of time without any information as to whether he or she was still alive or died during that time, provided that the circumstances give rise to serious doubts as to his or her survival.</p>\n</blockquote>\n<p>A person that is considered "verschollen" can be pronounced dead by a court. This is only possible after 10 years of being "verschollen", 5 years if the person was 80 or older and cannot be done at all if the person is not at least 25.</p>\n<p>It is not enough that the missing person did not communicate. For example you cannot have someone pronounced dead, just because they left the country and did not contact you for years. There has to be <em>some</em> indication that they may indeed be dead or at least your good faith efforts to find them where not successful.</p>\n<p>There are also shorter periods for special cases: People that went missing during a war can be pronounced dead a year after peace, a person lost at sea in a shipwreck after 6 months, a person missing in a plane crash after three months. All these factors make it more likely the person is actually dead.</p>\n<p>So by those laws, there will be no shortage of work for judges 10 years after the event.</p>\n<hr />\n<p>Now, if I had to speculate, I would say that there would be a specific rule for this global event, not unlike the exceptions listed before. But that is just as much science fiction as the example.</p>\n<hr />\n<p><sup>(*)</sup> This should be very similar in <a href=\"/questions/tagged/austria\" class=\"post-tag\" title=\"show questions tagged 'austria'\" aria-label=\"show questions tagged 'austria'\" rel=\"tag\" aria-labelledby=\"tag-austria-tooltip-container\">austria</a>, since the laws quoted above are originally from 1939, when Germany had annexed Austria. Later after the liberation, both countries kept them. Probably under slightly different names, but generally they should still work very similar.</p>\n",
"score": 2
},
{
"answer_id": 90218,
"body": "<p>Almost certainly, there would be special laws to handle this situation <strong>retroactively</strong>.</p>\n<p>It is a principle of any reasonable legal system that criminal laws cannot be applied retroactively, <a href=\"https://en.wikipedia.org/wiki/Nulla_poena_sine_lege\" rel=\"nofollow noreferrer\">nulla poena sine lege</a>. But this is not a criminal matter. Consider how many countries which had existing laws for pandemics and quarantine situations nevertheless amended or added extra legislation to cover the specifics of COVID. Those laws did apply to people who had been infected prior to the enactment of the new laws ...</p>\n<p>When those laws are drafted, in the months and years after the event, legislators would consider the likelihood of a return, which depends on the prevailing scientific theories about the cause. (Or religious theories? Sounds a bit like the rapture.)</p>\n",
"score": 0
},
{
"answer_id": 90222,
"body": "<h2>People disappear all the time</h2>\n<p>Usually not so abruptly or in such numbers but the usual rules apply.</p>\n<p>This was addressed in <a href=\"https://law.stackexchange.com/questions/67856/what-happens-if-someone-dies-without-a-trace/67857?r=SearchResults&s=7%7C17.7176#67857\">What happens if someone dies without a trace?</a></p>\n",
"score": 0
}
] |
[
"death",
"any-jurisdiction"
] |
How does the USA allow so many legally illiterate police officers?
| -2 |
https://law.stackexchange.com/questions/90132/how-does-the-usa-allow-so-many-legally-illiterate-police-officers
|
CC BY-SA 4.0
|
<p>I sometimes get these random youtube shorts of police people in the US harassing people who try to film them while on duty.</p>
<p>Then you have these videos where these people have to try and convince these people whos job it is to enforce the law that they do actually have the right to film police while on duty.</p>
<p>Apparently in the US you have to educate police on your rights because you cannot expect law enforcement to have any specific knowledge of the laws they are tasked with enforcing.</p>
<p>I watch these random American people's dash cams and see police people doing things I know to be unconstitutional which is really bad when you consider the fact that my legal education does not comprise anything more than being a regular active member of this SE and that I live halfway around the world and have never set foot on US soil.</p>
<p>I'm just left wondering how exactly it is possible for the average bobby-on-the-beat in the US to have such a fundamental lack of knowledge on US laws?</p>
<p>I do not think that there are no good police in the US. All Im saying is the google bot shows me with alarming regularity US police people that this site has taught me are indeed trampling on peoples rights. I just cannot really understand how that could be the case?</p>
<p>Im not trying to generalise or stereotype anyone but I dont believe the opinion that American police could do with a couple of courses in constitutional law at a local community college is being unfair to them.</p>
<p>What legal requirements and standards are there for the legal training that US Officers of the Law receive before receiving their qualification and office. Are there no legal minimums as to understanding levels by law enforcement agents of people's constitutional rights?</p>
| 90,132 |
[
{
"answer_id": 90134,
"body": "<p>Your appraisal is unjustly harsh, though not incomprehensible. A surprising number of lawyers are legally illiterate, in the same sense, even Supreme Court justices have to be told what the law is in a certain sense, and they often have to <em>discover</em> the law rather than recite it.</p>\n<p>Bear in mind that the typical education requirement for being a police officer is graduation from high school, and not a law degree. The educational requirements for the FBI are stiffer. They learn certain basics in a training course that lasts a few months, which covers everything.</p>\n<p>There is no law prohibiting a police officer from "harassing" a person who wants to film them. The line in the sand is that they cannot <em>prevent</em> a person from filming them. It would be interesting to know how many officers are actually unaware that they cannot force a person to stop filming. Also, the statement that they "can't" stop a person from filming them is a bit of an over-statement – they actually are capable of doing that, but what are the consequences? Given <a href=\"/questions/tagged/qualified-immunity\" class=\"post-tag\" title=\"show questions tagged 'qualified-immunity'\" aria-label=\"show questions tagged 'qualified-immunity'\" rel=\"tag\" aria-labelledby=\"tag-qualified-immunity-tooltip-container\">qualified-immunity</a>, their own concern reduces to two issues: personal liability (getting sued) and department procedures manual (getting fired). It is invalid to infer ignorance from a particular pattern of behavior.</p>\n",
"score": 3
}
] |
[
"united-states",
"constitutional-law",
"police"
] |
Can a customer sue an Internet Cafe for being BULLied (kicked out+ threatening to call the SECURITY)
| -2 |
https://law.stackexchange.com/questions/90257/can-a-customer-sue-an-internet-cafe-for-being-bullied-kicked-out-threatening-t
|
CC BY-SA 4.0
|
<p>This internet cafe (computer gaming, charging us for every hour) literally kicked me out on the 3rd time (meaning I've only been there twice before)
for "having too many complaints" and "we can do that because we're a small business"</p>
<p>Here’s the most possible reason that they hate me: helping me adjust the settings and then switch stations took a long time (about 10 minutes, which is long for an anxious game player when he’s reluctantly AFK…you guys know how that feels) to try changing the game setting (but FAILED), and then I have to be brave enough to ask them if they can let me switch seats. Relaunching the game also takes time, which is counted into the $5/ hour.</p>
<p>I stayed for about 71 minutes, which is a little longer than the standard time. When I was about to leave and pay, I asked them if they could charge me for just an hour because of the time wasted. They agreed, but became upset when I carelessly dropped 2 drop of hand sanitizer on the table.</p>
<p>And now the main story happens: on this 3rd time, that woman straightforwardly said “I’m asking you nicely, to leave” and I was shocked.</p>
<p>Anyway that woman refused to provide any reason for kicking me She never let me complete the sentence and kept saying that she would call the SECURITY if I don’t leave</p>
<p>So I got kicked out because I had “too many complaints” and they’re “small business who can refuse to Service”.</p>
<p>That’s the whole story. I searched for a while and saw that “a store can ban you or anyone else for any reason except those protected by law against discrimination”. Does that mean I can’t sue them with a reasonable chance to win?</p>
| 90,257 |
[
{
"answer_id": 90258,
"body": "<p>There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels).</p>\n<p>If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose.</p>\n<p>Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer.</p>\n",
"score": 4
}
] |
[
"restaurants",
"public-accommodations"
] |
Is "make available" often used in commercial sales of goods contract?
| -1 |
https://law.stackexchange.com/questions/90302/is-make-available-often-used-in-commercial-sales-of-goods-contract
|
CC BY-SA 4.0
|
<p>I recently read an International commercial sales of goods contract. In which, there is a sentence...</p>
<p><em>The seller shall make available to the buyer (or shall present to the bank specified by the buyer) the following documents (tick corresponding boxes and indicate, as appropriate, the number of copies to be provided)</em></p>
<p>Why did the contract writer use "<em>make available</em>" instead of "<em>prepare</em>". Is "make available" often used in contract?</p>
| 90,302 |
[
{
"answer_id": 90312,
"body": "<h2>“Make available” means they’re here if you want them</h2>\n<p>It means more than preparing (I have them but you can’t take them), but less than delivering (here they are).</p>\n",
"score": 1
},
{
"answer_id": 90329,
"body": "<blockquote>\n<p>Why did the contract writer use "make available" instead of "prepare"</p>\n</blockquote>\n<p>Your description does not give specifics on what documents are required from the seller. Thus, the question requires us to speculate.</p>\n<p>Depending on the context or specifics, the term <em>prepare</em> might suggest that the seller needs to draft or set up documents that currently don't exist. The alternative of "<em>present[ing] to the bank specified by the buyer</em>" the listed documents is inconclusive on whether these or their contents are supposed to exist beforehand.</p>\n<blockquote>\n<p>Is "make available" often used in contract?</p>\n</blockquote>\n<p>Hard to tell, although it is irrelevant. What matters is whether a contract is clear enough on what the parties' intent is.</p>\n",
"score": 1
}
] |
[
"contract-law",
"international",
"sale-of-goods"
] |
I owe money to SVB and I have deposits with SVB. What happens now?
| 5 |
https://law.stackexchange.com/questions/90361/i-owe-money-to-svb-and-i-have-deposits-with-svb-what-happens-now
|
CC BY-SA 4.0
|
<p>I have 10 million USD deposited with Silicon Valley Bank. Now that they are liquidated, let's say I get to recover FDIC insured 0.25 million plus 5.75 million, total 6 million.</p>
<p>At the same time, I owe Silicon Valley Bank 4 million dollars. What happens? Do the unrecovered deposits and loan cancel each other out? Or do I have to pay them back 4 million?</p>
| 90,361 |
[
{
"answer_id": 90363,
"body": "<p>Your liabilities <strong>are not canceled out with your claims</strong> automatically. If this is a real story, it's best to talk to a lawyer familiar with bankruptcy proceedings.</p>\n<p>You still owe money to whoever owns the bankrupt bank now - that is, to the State of California. This debt stands to be collected.</p>\n<p>During the bankruptcy, your claim will be resolved in order of priority. After FDIC payout, the rest of your deposit will be <a href=\"https://www.fdic.gov/consumers/banking/facts/priority.html\" rel=\"noreferrer\">priority unsecured debt</a>. It is prioritized after priority payments and secured debts, but before non-priority unsecured debt.</p>\n<p>It is theoretically possible to lose the full deposit and still be liable for the debt.</p>\n",
"score": 8
}
] |
[
"banking"
] |
Most people treat bank deposits as bailment. Why is this the case? Is this a problem?
| -8 |
https://law.stackexchange.com/questions/90369/most-people-treat-bank-deposits-as-bailment-why-is-this-the-case-is-this-a-pro
|
CC BY-SA 4.0
|
<p>Explanation:</p>
<p>99.999% of people treat bank deposits as bailment.</p>
<p>But under FDIC rules, only the first 0.25 million is bailment. Amounts above that are loans to the bank. If the bank goes bankrupt, that amount is subject to loss.</p>
<p>But the problem is, 99.999% of people do not operate that way. This includes multi-millionaire tech founders who deposited large sums with Silicon Valley Bank.</p>
<p>An analogy:</p>
<p>Imagine if 99.999% of people thought that they could petition their grievances to the government. But when they actually try to do so, government agents arrest them by the thousands and throw the book at them.
This scenario is absolutely 100% hypothetical.</p>
<p>Questions:</p>
<p>(1) So what is the reason for the massive discrepancy between expectations and reality, regarding the nature of bank deposits?</p>
<p>(2) Is this discrepancy a problem? From what I see, it results in continuous bail-outs of failed banks, because people deposit critical funds and life savings in loan instruments that they perceived to be bailments.</p>
<p>(3) Are banks guilty of not properly informing customers about the non-bailment nature of deposits above 0.25 million?</p>
<p>(4) What can be done from a legal point of view to reduce this discrepancy between expectations and reality?</p>
| 90,369 |
[
{
"answer_id": 90371,
"body": "<blockquote>\n<p>99.999% of people treat bank deposits as bailment.</p>\n</blockquote>\n<p>This is not borne out by the evidence. The evidence is that most people do not conceptualize their daily interactions and relationships in legal categories like "contract," "bailment," etc. Most people do not turn their minds to the web of risks and rights that they operate in day to day.</p>\n<blockquote>\n<p>But under FDIC rules, only the first 0.25 million is bailment.</p>\n</blockquote>\n<p>This is also not true. No monetary deposit is a <a href=\"https://en.wikipedia.org/wiki/Bailment\" rel=\"nofollow noreferrer\">bailment</a>. The concept of bailment is limited to <em>tangible</em> property (e.g. the contents of a safe-deposit box). This is well-established common-law principle, but see generally Dickerson, "<a href=\"https://scholarship.law.vanderbilt.edu/vlr/vol41/iss1/4/\" rel=\"nofollow noreferrer\">Bailor Beware</a>" (1988).</p>\n<p>The remainder of your question asks for multiple opinions, each of which appears off-topic here, so I have tried to correct misunderstandings in your premise.</p>\n",
"score": 4
}
] |
[
"banking"
] |
How does a body corporate get sentenced for criminal offences?
| 2 |
https://law.stackexchange.com/questions/90346/how-does-a-body-corporate-get-sentenced-for-criminal-offences
|
CC BY-SA 4.0
|
<p>Some criminal offences specifically state that if they are committed by the officer of a body corporate then they along with the body corporate itself may be simultaneously processed against as well as each other.</p>
<p>They are further specified to be punishable on indictment to X years in prison.</p>
<p>Does the prison term get translated according to some scale as a fine in case of a corporate defendant?</p>
<p>Further, can bodies corporate be tried in magistrate as well as crown court?</p>
| 90,346 |
[
{
"answer_id": 90370,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Corporations are subject to the monetary fines in the <em>Criminal Code</em> or relevant Act. See "<a href=\"https://www.justice.gc.ca/eng/rp-pr/other-autre/c45/c45.pdf\" rel=\"nofollow noreferrer\">Criminal Liability of Organizations: A Plain Language Guide to Bill C-45</a>." Factors specific to the sentencing of organizations are found at <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/page-114.html#docCont\" rel=\"nofollow noreferrer\">s. 718.21</a>. Corporations can be tried in both <a href=\"https://www.justice.gc.ca/eng/csj-sjc/just/07.html\" rel=\"nofollow noreferrer\">provincial courts and superior courts</a>.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"england-and-wales",
"incorporation"
] |
What makes a car not a “negotiable” chattel?
| 0 |
https://law.stackexchange.com/questions/90344/what-makes-a-car-not-a-negotiable-chattel
|
CC BY-SA 4.0
|
<p>Another answer contrasts negotiable instruments like currency with the example of a car where a thief of the car doesn’t “own” the car and cannot transfer ownership. What is it about a car that makes it different from the currency?</p>
| 90,344 |
[
{
"answer_id": 90348,
"body": "<p>The question makes more sense if you ask it in the other direction.</p>\n<p>Everything that is not currency, pretty much, is like the car.</p>\n<p>Currency is the pretty much singular exception to this rule, by sheer force of laws designed to facilitate free transferability of currency without friction. Currency is special property because it is defined as such. See also <a href=\"https://law.stackexchange.com/a/90324/9517\">this answer</a>.</p>\n",
"score": 4
},
{
"answer_id": 90358,
"body": "<p>At least from the UK perspective, it's important to recall that the bearers of currency do not own it.</p>\n<p>The issuing bank owns banknotes, and the Crown owns coinage (with coinage being a much older form of currency than banknotes).</p>\n<p>Because the bearers do not own the currency, title cannot be stolen from them. What instead is stolen, when currency is stolen in the conventional sense, are the rights associated with the possession and which exist between the bearer and the issuer.</p>\n<p>When currency passes, ownership of the currency itself does not transfer, but rather the old bearer's rights are extinguished and new rights are created for the new bearer (i.e. it is not an assignment of existing rights).</p>\n<p>Therefore, when an innocent person comes into possession of currency, they acquire the new rights bestowed by possession, but they do not have any liability to any previous bearer whose rights were wrongly extinguished - only the wrongdoer has that liability.</p>\n<p>This is different from the general principle with ownership of chattels, where title cannot be conveyed unless the seller himself has good title (although there were historically some exceptions like "<a href=\"https://en.wikipedia.org/wiki/Market_overt\" rel=\"nofollow noreferrer\">market overt</a>").</p>\n<p>Various kinds of money have always had special treatment in law, and the English common law predates the widespread use of coinage (and in particular, fiat coinage), so it is not always easy to reconcile the various principles.</p>\n",
"score": 1
}
] |
[
"common-law",
"theft",
"ownership",
"currency",
"possession"
] |
Why is it considered unethical for a barrister to communicate with another side or even their own client, directly?
| 0 |
https://law.stackexchange.com/questions/90292/why-is-it-considered-unethical-for-a-barrister-to-communicate-with-another-side
|
CC BY-SA 4.0
|
<p>Obviously there are exceptions to this provision, like ones who are "direct access"-licensed, but why does that in itself even require special licensing qualifications to be permitted? And even then, can the direct access barrister communicate with other parties on the client's behalf?</p>
| 90,292 |
[
{
"answer_id": 90365,
"body": "<p>Writing to other parties on behalf of a client is traditionally solicitors' work. It is not necessarily "unethical" for barristers to do it, but the premise of the split profession is that it is more efficient for advocates to specialise in courtroom advocacy, and not spend their time on solicitors' work.</p>\n<p>Representing a client outside the courtroom is a time-consuming responsibility, which a barrister may not be able to discharge while appearing in court for other clients. Barristers are sole practitioners who cannot easily delegate work to partners, junior lawyers or paralegals.</p>\n<p>While direct access necessarily requires barristers to do some solicitors' work, a sole practitioner who provides the full range of legal services should really practise as a one-person law firm rather than a barrister.</p>\n",
"score": 1
}
] |
[
"common-law",
"lawyer",
"professional-ethics",
"any-jurisdiction",
"barristers"
] |
What laws would Jesus be breaking if he were to turn water into wine today?
| 53 |
https://law.stackexchange.com/questions/90050/what-laws-would-jesus-be-breaking-if-he-were-to-turn-water-into-wine-today
|
CC BY-SA 4.0
|
<p>In the Bible is Jesus’ first miracle: of turning water into wine:</p>
<blockquote>
<p>“On the third day a wedding took place at Cana in Galilee. [...] Nearby stood six stone water jars, the kind used by the Jews for ceremonial washing, each holding from eighty to a hundred and twenty litres. Jesus said to the servants, ‘Fill the jars with water’; so they filled them to the brim. Then he told them, ‘Now draw some out and take it to the master of the banquet.’ They did so, and the master of the banquet tasted the water that had been turned into wine. [...]”</p>
<p><a href="https://bible.com/bible/113/jhn.2.1-9.NIVUK" rel="nofollow noreferrer">John 2:1-9 NIVUK</a></p>
</blockquote>
<p>Hand-waving the mechanism of transformation, what laws would be violated? I’m assuming alcohol licensing, potentially food certifications + labelling, etc. Assume the same scenario: a guest at a wedding who does not receive compensation for the wine.</p>
<p>Interested in any jurisdiction.</p>
| 90,050 |
[
{
"answer_id": 90054,
"body": "<p>North Carolina, <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The problem is Jesus didn't make wine, he made liquor, which is more heavily regulated.</p>\n<p><a href=\"https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_18b.html\" rel=\"noreferrer\">NCGS § 18B-306 (a)</a></p>\n<blockquote>\n<p>Authority. - An individual may make, possess, and transport wines and malt beverages for the individual's own use, the use of the individual's family and guests...</p>\n</blockquote>\n<p>That would appear to make the transformation ok. However, the issue is if you look at the definition for wine, NCGS § 18B-101 (9)</p>\n<blockquote>\n<p>"Unfortified wine" means any wine or alcohol consumable containing sixteen percent (16%) or less alcohol by volume made by fermentation from grapes, fruits, berries, rice, or honey; or by the addition of pure cane, beet, or dextrose sugar; or by the addition of pure brandy from the same type of grape, fruit, berry, rice, or honey that is contained in the base wine and produced in accordance with the regulations of the United States.</p>\n</blockquote>\n<p>Miracle wine isn't wine because the alcohol didn't arise from fermentation, it came from a miracle. Similarly, NCGS § 18B-101 (15) says</p>\n<blockquote>\n<p>"Malt beverage" means beer, lager, malt liquor, ale, porter, and any other brewed or fermented beverage or alcohol consumable except unfortified or fortified wine as defined by this Chapter, containing at least one-half of one percent (0.5%), and not more than fifteen percent (15%), alcohol by volume.</p>\n</blockquote>\n<p>and since it wasn't brewed or fermented, it's not a malt beverage either. Therefore, it would be a liquor, as it's an alcohol consumable containing ethyl alcohol. NCGS § 18B-101 (14)</p>\n<blockquote>\n<p>"Spirituous liquor" or "liquor" means distilled spirits or ethyl alcohol, and any alcohol consumable containing distilled spirits or ethyl alcohol, including spirits of wine, whiskey, rum, brandy, gin and all other distilled spirits and mixtures of cordials, liqueur, and premixed cocktails, in closed containers regardless of their dilution.</p>\n</blockquote>\n<p>Thus, Jesus would violate § 18B-307(b)</p>\n<blockquote>\n<p>Unlawful Manufacturing. - Except as provided in G.S. 18B-306, it shall be unlawful for any person to manufacture any alcoholic beverage, except at an establishment with a Brew on Premises permit or a Winemaking on Premises permit, without first obtaining the applicable ABC permit and revenue licenses.</p>\n</blockquote>\n",
"score": 62
},
{
"answer_id": 90052,
"body": "<h2>None</h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<p>Anyone can make wine for personal use (which includes giving it to friends).</p>\n<p>Food handling and labelling laws are only applicable if the wine is going to be sold.</p>\n<p>Assuming the wedding was being held on unlicensed premises and the wine was not being sold, licensing laws are N/A. It is illegal to serve alcohol to children except with the permission of their parent/guardian.</p>\n<p>If the premises are licensed then the “servants” would need to hold current Responsible Service of Alcohol qualifications and serve in accordance with the rules (no wine to intoxicated people, children etc.) and the licensee or their delegate would need to be on site.</p>\n",
"score": 28
},
{
"answer_id": 90066,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Making several barrels of home-made wine for consumption at a friend's wedding (without payment) would be perfectly legal in the UK. No licence would be required, nor would Jesus have to pay any Duty on the wine produced.</p>\n<blockquote>\n<p><strong>The Wine and Made-wine Regulations 1989</strong></p>\n<p>These Regulations apply to wine and made-wine produced in the United Kingdom <strong>for sale.</strong></p>\n<p><sub><sup>https://www.legislation.gov.uk/uksi/1989/1356/made</sub></sup></p>\n</blockquote>\n<hr />\n<p>In the event that Jesus attempted to <em>sell</em> said wine to his friend, at that point he'd be breaking a host of laws on <a href=\"https://www.gov.uk/government/collections/wine-duty\" rel=\"noreferrer\">Excise Duty</a>, <a href=\"https://www.gov.uk/guidance/wine-duty#who-needs-a-licence-to-produce-wine\" rel=\"noreferrer\">licencing as a vintner or winemaker</a>, <a href=\"https://www.food.gov.uk/business-guidance/wine-labelling\" rel=\"noreferrer\">wine labelling</a>, <a href=\"https://www.food.gov.uk/business-guidance/food-hygiene-for-your-business\" rel=\"noreferrer\">food hygiene standards</a>, etc etc.</p>\n",
"score": 18
},
{
"answer_id": 90059,
"body": "<p><a href=\"/questions/tagged/washington\" class=\"post-tag\" title=\"show questions tagged 'washington'\" aria-label=\"show questions tagged 'washington'\" rel=\"tag\" aria-labelledby=\"tag-washington-tooltip-container\">washington</a></p>\n<p>Assuming <em>ad arguendo</em> that the substance is wine, our attention is first directed to <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=66.12&full=true\" rel=\"noreferrer\">RCW 66.12.010</a> which says</p>\n<blockquote>\n<p>Nothing in this title, other than <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=66.28.140\" rel=\"noreferrer\">RCW 66.28.140</a>, applies to wine or\nbeer manufactured in any home for private consumption, and not for\nsale.</p>\n</blockquote>\n<p>Note that the "other than" exception allows for what would otherwise be illegal transportation, saying that</p>\n<blockquote>\n<p>An adult member of a household may remove family beer or wine from the\nhome subject to the following conditions: (a) The quantity removed by\na producer is limited to a quantity not exceeding twenty gallons</p>\n</blockquote>\n<p>Apart from the fact that the quantity being produced is over the volume limit on transporting home-brew, it was not produced in any home. The homebrew exemption does not apply. Production of alcohol requires <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=66.24&full=true\" rel=\"noreferrer\">a license</a>, and payment of various fees per RCW 66.24.170.</p>\n<p>The question whether the substance counts as "wine" is not relevant in Washington. <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=66.04.010\" rel=\"noreferrer\">Wine</a> is defined as</p>\n<blockquote>\n<p>any alcoholic beverage obtained by fermentation of fruits (grapes,\nberries, apples, et cetera) or other agricultural product containing\nsugar...</p>\n</blockquote>\n<p>but there aren't stricter requirements on alcohol produced by trans-substantiation, and plainly no distillation was involved.</p>\n",
"score": 14
}
] |
[
"licensing",
"history"
] |
If a crime happens between two parties in different countries over the internet, what laws apply?
| 1 |
https://law.stackexchange.com/questions/90359/if-a-crime-happens-between-two-parties-in-different-countries-over-the-internet
|
CC BY-SA 4.0
|
<p>Lets say, for the sake of example, it's a severe crime (punishable by jail time) in the United States to say that someone stinks.</p>
<p>Person A is from Brazil where no such law exists</p>
<p>Person B is from the United States</p>
<p>Person A says "You stink" publicly to Person B on Twitter.</p>
<p><strong>What would happen?</strong></p>
<p>Would Person A get away with it or would they be extradited and judged under US law?</p>
| 90,359 |
[
{
"answer_id": 90362,
"body": "<p>The UN has a copy of the <a href=\"https://treaties.un.org/doc/Publication/UNTS/Volume%20532/volume-532-I-7718-English.pdf\" rel=\"nofollow noreferrer\">extradition treaty between the US and Brazil</a>, the short version of it is that the treaty lays out in Article II an exhaustive list of crimes that are extraditable, skimming the list I don't see defamation (since of course in real life it's not a federal crime). As a general principle, Country A won't extradite someone to Country B if the conduct they are accused of in Country B is not a crime in Country A, if Country A does not think Country B would provide a fair trial, or if the person is convicted if the punishment likely to be imposed by Country B would be illegal under the laws of Country A (this comes up a lot with extradition from Europe to the US if a possible punishment for the crime is death). So in your hypothetical Brazil would probably be unwilling to extradite its own citizen for the crime the US accuses them of.</p>\n<p>I think another part of your question is whether the US or Brazil would have jurisdiction over this defamation. In theory, both could claim jurisdiction over it. In practice most criminal conduct is criminal relatively universally, especially among similarly geolocated countries, so the rest of this paragraph is assuming both countries did consider the defamation criminal and extraditable. As a matter of judicial effectiveness an Internet crime would probably be prosecuted in the country where the person resides. There would likely be a language barrier too, if the US court would have to employ a Portuguese translator. However, this is all largely a political question more than a legal one, if the US really wanted to make an example of this person in their own country the US could try to use political leverage to get Brazil to extradite them. The US could also wait until the person travelled abroad and petition the third country to imprison and extradite them. That's something that happens more commonly for citizens of a country that the US does not have an extradition treaty with.</p>\n",
"score": 3
}
] |
[
"internet",
"international",
"extradition"
] |
What are the correct parameters of usage for addressing parties as one’s “learned friend”?
| 0 |
https://law.stackexchange.com/questions/90340/what-are-the-correct-parameters-of-usage-for-addressing-parties-as-one-s-learne
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<p>Does a solicitor with right of audience address their opposing barrister as their learned friend? Do they get addressed as the barrister’s learned friend?</p>
<p>What of a litigant in person?</p>
<p>And in all cases is it to be used in place of all other terms of first or third person address? Or just sprinkled in occasionally amid other references to “you,” or “he/him,” or “Mr. Smith”?</p>
| 90,340 |
[
{
"answer_id": 90350,
"body": "<p>The default way to address opponents in courtroom, no matter whether barristers, solicitors or lay litigants, is "<title> <surname>" e.g. Mr Smith.</p>\n<p>"Learned friend" is just an alternative to be "sprinkled in occasionally". The "learned" bit was originally intended to denote that the opponent is highly educated in law and qualified to be representing people before the court. "Friend" denotes that the opponent is a member of the same profession or, otherwise, is civilized, reasonable, polite and adequate person to speak to about the contentious matters at issue (as opposed to what the actual opposing party would likely have been).</p>\n<p>That said, strictly speaking, "learned friend" is only suitable for lawyers to verbally address each other in courtroom. But this is not a rule that is expected to be strictly followed. Indeed, I, while being a self-represented lay party, was actually addressed "my learned friend" by the opposing lawyer. I don't know whether it was a very subtle taunt/sarcasm or genuine appreciation, but either way, there was no disapproval by the judge.</p>\n",
"score": 1
}
] |
[
"legal-terms",
"common-law",
"rules-of-court",
"barristers",
"rights-of-audience"
] |
Is standing on a sidewalk with a sign that says "Slow down, Speed trap ahead" illegal?
| 2 |
https://law.stackexchange.com/questions/90345/is-standing-on-a-sidewalk-with-a-sign-that-says-slow-down-speed-trap-ahead-il
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<p>Police set up a speed trap on a busy intersection. Bob decides to create a sign that says "Slow down, Speed trap ahead" and get way ahead of the speed trap to slow people down. He is slowly walking up the sidewalk. Is Bob breaking the law?</p>
| 90,345 |
[
{
"answer_id": 90352,
"body": "<p>I believe there are courts that have affirmed convictions for obstructing official business or something along those lines, but the general consensus seems to be that conduct like this is not a crime, or that it cannot be criminalized without violating the First Amendment.</p>\n<p>The most recent decision on point came just a few weeks ago. In <a href=\"https://casetext.com/case/friend-v-gasparino\" rel=\"noreferrer\"><em>Friend v. Gasparino</em>, No. 20-3644 (2d Cir. Feb. 27, 2023)</a>, a man sued police for arresting him because he had set up a sign saying "Cops Ahead" two blocks away from where they were running an operation to enforce distracted-driving laws. The trial court dismissed the case, holding (1) that the sign was not protected by the First Amendment because it was "of little, if any, public concern"; and (2) that even if it was protected, the officer's conduct in arresting him satisfied strict scrutiny because if police wanted to prevent distracted driving, there was no less restrictive alternative to arresting the plaintiff.</p>\n<p>But the Second Circuit reversed, holding (1) that speech remains protected even if it is not a matter of public concern; and (2) that there was no evidence that limiting the plaintiff's speech was <em>necessary</em> to permit the state to write citations and enforce the law, even if it would have been helpful.</p>\n",
"score": 7
},
{
"answer_id": 90356,
"body": "<p><a href=\"/questions/tagged/switzerland\" class=\"post-tag\" title=\"show questions tagged 'switzerland'\" aria-label=\"show questions tagged 'switzerland'\" rel=\"tag\" aria-labelledby=\"tag-switzerland-tooltip-container\">switzerland</a></p>\n<p>Most likely, Bob is breaking the law. In Switzerland, the use of radar detection devices is illegal, as is the public distribution of information about speed cameras. This includes creating public groups on social media platforms such as WhatsApp or Facebook to warn speeders of these traps. So I'm assuming putting up a sign that warns people is illegal, too.</p>\n<p>In Switzerland, the possible sentences for speeding can be very high, up to several years in jail. The possible sentences for warning about speed traps are <a href=\"https://www.bussgeldrechner.org/radarwarner-schweiz.html\" rel=\"nofollow noreferrer\">equally high</a> (but of course, the sentence will depend on the reach of one's announcement, so Bob is probably just given a fine, as opposed to when he would be distributing his information on some broadcast channel).</p>\n",
"score": 1
}
] |
[
"united-states"
] |
What is denoted by “operation of law”?
| 3 |
https://law.stackexchange.com/questions/90341/what-is-denoted-by-operation-of-law
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|
<p>I had only previously encountered the phrase as in “surrender by operation of law” until just now I read the latter portion of the phrase used independently by user @ohwilleke in another answer. What does the component phrase “operation of law” denote?</p>
| 90,341 |
[
{
"answer_id": 90349,
"body": "<p>"by operation of law" means that something happens automatically even if nobody does something about it.</p>\n<p>For example, if property is owned in joint tenancy with right of survivorship, it becomes the sole property of the surviving owner automatically and instantaneously when the other co-owner of the property dies, even if documenting that in the public record takes time.</p>\n<p>Similarly, you get the right to buy beer in Colorado immediately after midnight on your twenty-first birthday, without having to apply to any agency to active this right.</p>\n<p>And, if you have a claim with a two year statute of limitations and two years and a day pass after the event triggering the statute passes, your claim is extinguished by operation of law even though no court has said so.</p>\n",
"score": 7
}
] |
[
"legal-terms",
"common-law"
] |
Is there a practical way to see the actual rulings/reasons/considerations that resulted in the litigation bars in effect against vexatious litigants?
| 0 |
https://law.stackexchange.com/questions/90293/is-there-a-practical-way-to-see-the-actual-rulings-reasons-considerations-that-r
|
CC BY-SA 4.0
|
<p>There is a register of bans available at <a href="https://www.gov.uk/guidance/vexatious-litigants" rel="nofollow noreferrer">https://www.gov.uk/guidance/vexatious-litigants</a>, but it is just the barest list of names. Where can one find any more details on each of these cases?</p>
| 90,293 |
[
{
"answer_id": 90322,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<blockquote>\n<p>Where can one find any more details on each of these cases?</p>\n</blockquote>\n<p>The orders will be on file at the court and, unless sealed, would be available for public viewing. You can also search online databases for terms such as "vexatious litigant" or the name of the person for the written reasons.</p>\n<blockquote>\n<p>Is it practical...</p>\n</blockquote>\n<p>This is asking for an opinion. All I can say is that I have done it via both methods.</p>\n",
"score": 1
},
{
"answer_id": 90301,
"body": "<p>Yes. The definition of a vexatious litigant is one who <em>habitually</em> uses lawsuits for improper purposes. As such, there will be court records of all these lawsuits which led to this determination. You simply search the court records for those suits.</p>\n<p>The government is not going to <em>summarize the reason</em>, because that would them creating editorial content about the litigant which is deleterious to their reputation. Which puts the litigant in a very bad, and basically unfair position. <em>Their hands are tied, they can't very well sue for defamation without getting permission of the very same government making the satatement!</em></p>\n<p>It's bad form to be unfair to people you have barred for being unfair, as it undercuts your own claim of their unfairness.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"vexatious-litigants"
] |
What’s the difference between a trial court and a court of first instance?
| 0 |
https://law.stackexchange.com/questions/90300/what-s-the-difference-between-a-trial-court-and-a-court-of-first-instance
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|
<p>In a recent discussion thread one was defined as apparently rather nearly the same thing as the other prompting me to ask what is the difference between them.</p>
| 90,300 |
[
{
"answer_id": 90311,
"body": "<h2>They are synonyms</h2>\n<p>A trial court or a court of first instance is the first court where a matter is tried. This is in contrast to an appellate court which is where appeals from trials are heard.</p>\n<p>Note that some courts are one, some are the other, some do both, and some are the same people with different “hats”.</p>\n",
"score": 2
},
{
"answer_id": 90336,
"body": "<p>Court of first instance is a slightly more generic term and is more often used in civil law, while trial court is a term more often used in common law forums, in part, because common law courts tend to have a single compact trial rather than a series of smaller evidentiary hearings in civil cases.</p>\n<p>I used the term "court of first instance" in a comment on the theory that you might be unfamiliar with the term "trial court" which most common law jurisdiction residents are familiar with because you might have a civil law legal system background.</p>\n",
"score": 2
},
{
"answer_id": 90339,
"body": "<p>"Court of first instance" is a broad term that includes trial courts. As long as the court is the matter's entry point into the judicial system, it is the court of first instance for that matter. So, the term "court of first instance" or "judge of first instance" also includes judicial entities settling a matter other than via a trial. A court of first instance might be conducting a judicial review (which is a hearing, not a trial), or hearing an application for various forms of statutory relief or declarations (again, these are hearings, not trials). It happens that most of these non-trial first-instance hearings are handled by the very same courts and judges that hold first-instance trials, so there would generally be no practical confusion if you did not use the terms with this kind of precision.</p>\n<p>Here is some example language showing the usage in these other contexts:</p>\n<ul>\n<li>"<a href=\"https://canlii.ca/t/gk0rk#par40\" rel=\"nofollow noreferrer\">This Court held that the judge at first instance had erred in entertaining the judicial review application because he failed to exercise his discretion on relevant grounds...</a>"</li>\n<li>"<a href=\"https://canlii.ca/t/1tvvg\" rel=\"nofollow noreferrer\">the learned judge of first instance had granted a mandamus requiring the respondents to issue a building permit upon an application made by the appellant</a>"</li>\n</ul>\n",
"score": 2
}
] |
[
"legal-terms",
"appeal",
"first-instance"
] |
Can peer/societal-pressure count as witness intimidation?
| -4 |
https://law.stackexchange.com/questions/90304/can-peer-societal-pressure-count-as-witness-intimidation
|
CC BY-SA 4.0
|
<p>Inspired by Yakuza: Lost Judgement.</p>
<p>Briana the boss committed a crime, and only Walter the worker directly witnessed it. Briana is well-loved in society (e.g. very sociable and nice to everyone, with a legion of followers on Twitter), as well as Walter's boss. Everyone on social media is fiercely in favour of Briana, who is a strong advocate for female empowerment.</p>
<p>Sam (who Suffered from Briana's crime) wants to take Briana to trial. Walter initially agrees to testify as a witness. But after seeing the tirade of social media posts in support of the powerful female rolemodel Briana, and considering that Briana is his boss, Walter realizes it's not worth coming out against Briana, especially when Sam isn't likely to win.</p>
<p>Is there any decent case to consider this as witness intimidation of Walter, or anything of the sort? Walter's peers (at work) and society (on social media) are giving him every pressure not to stand up to Briana, to be clear.</p>
<p>If you want a concrete example, consider a case where Briana sexually assaulted Sam in front of Walter.</p>
<p>Edit:
For those curious, the original context is: a male teacher let a student be bullied into suicide. When the dead student's father sued the school, a female teacher who witnessed the bullying didn't testify, because the male teacher was her superior, and it would ruin her career.</p>
| 90,304 |
[
{
"answer_id": 90325,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Witness intimidation is defined at <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-423.html\" rel=\"nofollow noreferrer\">s. 423 of the <em>Criminal Code</em></a>. Witness intimidation requires a specific purpose and also requires violence, threats, following, or similar physical acts.</p>\n<p>Obstruction of justice is defined at <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-139.html\" rel=\"nofollow noreferrer\">s. 139</a>. Obstruction of justice requires the specific intent "to obstruct, pervert or defeat the course of justice."</p>\n<p>Without more, the circumstances you describe do not make out the elements of those offences. The facts as described do not demonstrate that the people are "giving him every pressure." They are not bribing him; they are not threatening him with violence; they are not using corrupt means; etc.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law",
"california",
"witnesses",
"japan"
] |
How is social media allowed to reproduce content, but you can't put the same content on a blog with ads?
| 1 |
https://law.stackexchange.com/questions/90286/how-is-social-media-allowed-to-reproduce-content-but-you-cant-put-the-same-con
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CC BY-SA 4.0
|
<p>I see videos and images from Twitter feeds, and they are full of stuff without copyright notices.</p>
<p>This is just one small example, I see thousands of posts all with sound, or video or images taken from somewhere else.</p>
<p>Sometimes these posts can be used to make money, however indirectly, such as increasing your following, which you can then serve ads to on your website or through YouTube ads, etc..</p>
<p>Youtube doesn't allow you to upload a direct song of a famous artist, and there are other copyright infringement blocking attempts made by Twitter and other platforms when you try and upload something.</p>
<p>But in general, what is the law here, is social media basically one big loophole in the law where you are allowed to use copyrighted material? Why couldn't you do the same thing but put your "posts" on your own website with ads? I don't see the difference. Hoping to understand why millions of people are allowed to essentially copyright infringe using social media, yet you aren't allowed to put the same images/sounds/videos on your own blog or website.</p>
| 90,286 |
[
{
"answer_id": 90291,
"body": "<p>Social media is not a legal loophole, but it may be an enforcement loophole. The primary legal "loophole" is the DMCA takedown safe harbor, that a content provider can avoid liability for infringement if they follow certain procedures. This means that Tube and other user-content purveyors can be more hands-off in gate-keeping (compared to a regular print publisher). A print publisher has to actively worry about whether stuff they print infringes copyright, where they could be held vicariously liable for infringement. Online platforms have a special dispensation, requiring that they take down supposedly infringing material when notified (in a particular way). The essential legal difference is that <em>you</em> put up the material on your blog, and <em>you</em> but not Tube put up the infringing content on social media. You will be held liable in both cases; the platform will not be.</p>\n",
"score": 1
},
{
"answer_id": 90294,
"body": "<h2>There is no difference</h2>\n<p>When you copy something there are 3 possibilities:</p>\n<ol>\n<li>It’s definitely legal: you own the rights, you have permission (a licence) from the person who owns the rights, or the work is public domain.</li>\n<li>It’s possibly legal: you are posting without permission on the basis that it falls into an exemption to copyright like fair use or fair dealing as applicable.</li>\n<li>It’s illegal: you don’t have permission and there is no exemption.</li>\n</ol>\n<p>Note that is on <em>you</em> as publisher. It is not on the platform or ISP that hosts the content. They have protection under the Digital Millennium Copyright Act (DMCA) or equivalent in other countries.</p>\n<p>So if you post infringing material on Twitter or Facebook or your own website, you can be sued by the copyright holder. However, Twitter and Facebook can’t be provided they remove the infringing material in accordance with the law.</p>\n<p>When looking at stuff posed by other people, there is no way to know which category it’s in - that’s between them and the copyright holder.</p>\n",
"score": 1
}
] |
[
"copyright",
"social-media"
] |
Who owns money (EUR) as a thing in the EU?
| 1 |
https://law.stackexchange.com/questions/90315/who-owns-money-eur-as-a-thing-in-the-eu
|
CC BY-SA 4.0
|
<p>The European Central Bank prints money (EUR) and puts it into circulation. It is therefore the first owner. Are persons who take possession of the money also owners at the same time? I am talking here about possession and ownership. Or does the ECB remain the owner?</p>
| 90,315 |
[
{
"answer_id": 90324,
"body": "<h2>A possessor in good faith owns currency</h2>\n<p>Currency is owned by the person who has it provided they came into possession legitimately.</p>\n<p>Currency is a small category of goods, known as negotiable instruments, where the person who has it, owns it. <em>Unless</em>, they came into possession in an illegitimate way, such as by stealing it or finding it (and not handing it in to the authorities). If they received it in the course of a legitimate transaction - wages, payment for goods or services, etc. - then they own it even if the currency was previously tainted. Contrast this with, say, a car, where the legitimate owner remains the legitimate owner no matter who is in possession.</p>\n<p>Now, there are usually laws that prohibit the destruction of currency even if you own it, but that doesn’t change the fact that you own it. For comparison, there are laws against dumping your car in the river but it’s still your car.</p>\n",
"score": 7
}
] |
[
"european-union",
"ownership",
"euro",
"ecb"
] |
If a witness asks for their lawyer during a trial, how is it handled?
| 12 |
https://law.stackexchange.com/questions/90305/if-a-witness-asks-for-their-lawyer-during-a-trial-how-is-it-handled
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CC BY-SA 4.0
|
<p>A criminal trial is going on. Andy the Attorney asks Walter the Witness some questions. After a while, Walter realizes he's been an idiot, and says he wants his Lawyer Larry.</p>
<p>How does the court proceed? Do they set up a second trial with Walter and Larry before they can proceed with the first trial? Or what?</p>
<p>Two examples:</p>
<ol>
<li>Walter said one thing (which wasn't exactly true), and Andy brought up evidence that Walter was lying. Walter would rightly like to consult his lawyer Larry at this point before saying anything else.</li>
<li>Walter idiotically admits to a crime while serving as a witness. Walter would obviously want to consult with his lawyer Larry at this point, to amend his original statements.</li>
</ol>
<p>I am not a lawyer, so sorry if I'm completely ignorant of witness/court proceedings.</p>
| 90,305 |
[
{
"answer_id": 90314,
"body": "<p>Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial.</p>\n<p>A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests.</p>\n<p>There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence.</p>\n",
"score": 14
},
{
"answer_id": 90331,
"body": "<p>Your question doesn't fully investigate Walter's role in the outcome. This is important because US courts play the role of arbiters between parties with specific interests, unlike inquisitorial systems where judges are theoretically impartial. The main fact to consider is that the 5th Amendment has a clause "nor shall be compelled in any criminal case to be a witness against himself" which we understand to mean that you can refuse to testify if the testimony could be used against you in a criminal case – you can "take the Fifth".</p>\n<p>If Walter concludes that something he says may be used against him in a criminal case, he has the right to refuse to testify. The courts have repeatedly ruled that an assertion of the right to silence must be clear and unambiguous, not vaguely hinted at. A witness must repeatedly assert that right for each relevant question. One limit on your right to silence is that a defendant has a Sixth Amendment right to cross-examination, so if Walter has testified against the defendant, he cannot invoke the right to silence when the defendant asks questions that challenge his testimony. Walter therefore has to understand the long-term consequences of his testimony, and not say something that will lead him to confessing to a crime under cross-examination.</p>\n<p>The government prosecutor can apply to the court for an order of immunity, the consequence of which is that Walter's testimony cannot be used against him in a prosecution. Now Walter must testify or face contempt charges.</p>\n<p>A problem is that Walter's testimony must not be false, since the grant of immunity does not immunize against prosecution for perjury in that testimony, see for example <a href=\"https://supreme.justia.com/cases/federal/us/445/115/\" rel=\"nofollow noreferrer\">US v. Apfelbaum</a>. Walter must therefore testify carefully. Therefore, even with a grant of immunity there is still some risk. Ordinarily the risk is negligible if you just "tell the truth", but Walter cannot assume that the defendant's attorney is also his attorney. As stipulated, Walter is an idiot, and he may not be competent to cleverly frame his response to avoid a perjury charge (e.g. Bronston, Clinton). This can be a problem for Walter if he has limited competence in courtroom English and cannot articulate his personal understanding of the intent of a question (see for example the case in Shuy <em>Language crimes</em> where a witness was convicted for perjury based on his misunderstanding of what the prosecutor was "really asking"). Walter can ask for clarification, and with the assistance of an attorney looking out for Walter's interests could answer the question appropriately.</p>\n<p>Walter has to communicate to the judge something about his concern over self-incrimination – he has to first assert the right, before he can be protected.</p>\n",
"score": 3
}
] |
[
"united-states",
"california",
"court",
"lawyer",
"trial"
] |
Is it illegal to download data from a misconfigured server that is open to the public?
| 2 |
https://law.stackexchange.com/questions/90197/is-it-illegal-to-download-data-from-a-misconfigured-server-that-is-open-to-the-p
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CC BY-SA 4.0
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<p>Bob has a website that he hosts online and is open to the public. A portion of the site has "members only" data. However, Bob implemented his security protection of this sensitive data incorrectly. So when Alice clicks the link to view the protected data, instead of being prompted to login or sign up. She just gets access to the data.</p>
<p>Has Alice broken the law if she unintentionally views/downloads the members only data?</p>
| 90,197 |
[
{
"answer_id": 90198,
"body": "<p>The most apparent potential offences would be under <a href=\"https://uscode.house.gov/view.xhtml?req=(title:18%20section:1030%20edition:prelim)\" rel=\"nofollow noreferrer\">18 U.S.C. § 1030</a>, but these require the <a href=\"https://en.wikipedia.org/wiki/Mens_rea\" rel=\"nofollow noreferrer\"><em>mens rea</em></a> of "knowingly" or "intentionally" doing things without authorization, or doing so "with intent to defraud", etc. See also the Department of Justice's <a href=\"https://www.justice.gov/jm/jm-9-48000-computer-fraud\" rel=\"nofollow noreferrer\">manual entry</a> on this family of offences. Particularly relevant is this quote:</p>\n<blockquote>\n<p>As part of proving that the defendant acted knowingly or intentionally, the attorney for the government must be prepared to <strong>prove that the defendant was aware of the facts that made the defendant’s access unauthorized at the time of the defendant’s conduct</strong>.</p>\n</blockquote>\n<p>Given your stipulation that the person has <em>unintentionally</em> viewed or downloaded the material without authorization, this would not be a violation of 18 U.S.C. § 1030.</p>\n",
"score": 3
}
] |
[
"united-states",
"internet"
] |
What is the purpose of a Corporation Sole?
| 0 |
https://law.stackexchange.com/questions/90306/what-is-the-purpose-of-a-corporation-sole
|
CC BY-SA 4.0
|
<p>Why must an organisation represent the idea of an individual, rather than the organisation acting in its own capacity while the individual simply sits as its head?</p>
<p>In other words, why do case workers of the ICO form the <em>Information Commissioner's Office,</em> rather than the Information Commissioner simply serving as the head of the Information Commission or Information Rights Office or something like that?</p>
<p>What function does this notion of a <em>corporation sole</em> serve?</p>
| 90,306 |
[
{
"answer_id": 90323,
"body": "<p>The Information Commissioner is the successor of the Data Protection Registrar, created by the <a href=\"https://www.legislation.gov.uk/ukpga/1984/35/enacted\" rel=\"nofollow noreferrer\">Data Protection Act 1984</a>. The office was <a href=\"https://www.legislation.gov.uk/ukpga/1998/29/schedule/5/enacted\" rel=\"nofollow noreferrer\">renamed in 1998</a>\nand <a href=\"https://www.legislation.gov.uk/ukpga/2000/36/part/I/crossheading/the-information-commissioner-and-the-information-tribunal/enacted\" rel=\"nofollow noreferrer\">again in 2000</a>, and the functions have changed along the way. The current governing legislation is the <a href=\"https://www.legislation.gov.uk/ukpga/2018/12/schedule/12\" rel=\"nofollow noreferrer\">Data Protection Act 2018, schedule 12</a>. There have been many suggestions of changing the structure - such as the ICO's <a href=\"https://ico.org.uk/media/about-the-ico/minutes-and-papers/2017/2013730/mb-triennial-review-report-20170206.pdf\" rel=\"nofollow noreferrer\">Triennal Review</a> of 2015, and the <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/270942/0780_iii.pdf\" rel=\"nofollow noreferrer\">Leveson Inquiry Report</a> (see sections 4.8 and 4.9, p1109 of volume 3) of 2012 - but that has not happened.</p>\n<p>So your sense that the "corporation sole" model is a bit unusual is shared by many distinguished minds, and even in 1984 it was probably anomalous, judging by a quick scan of contemporaneous legislation. For example, the "Cable Authority" <a href=\"https://www.legislation.gov.uk/ukpga/1984/46/schedule/1/enacted\" rel=\"nofollow noreferrer\">established in the same year</a> was created as a statutory corporate body, to regulate cable television. Ultimately, the Data Protection Registrar and the Cable Authority could do the same sorts of things, as far as employing people, acquiring property, entering into contracts, and so forth. There were special rules for how the Registrar and the Authority members would be appointed - these are <em>different</em> rules from one another, but they are both set up by primary legislation. The differences therefore fall to be explained as a matter of policy preference, since they are both legally viable ways to establish a body performing public functions "at arm's length" from ministers.</p>\n<p>The main difference is at the leadership level, since as far as doing the job, people employed in the ICO are in the same position regardless of whether they work for a corporation sole or aggregate.\nIf there is one person in charge, then you have a single "head" salary to pay, a single selection process to run to find them, and a single point of accountability to government and to Parliament. If there is a board of directors then they all have to get chosen somehow, and responsibility can be more diffuse. But having several people can lead to better decision-making, and could make the organization appear less biased by having balanced representation.</p>\n<p>In fact, prior to the Act of 1984, the creation of a Data Protection Authority (rather than a sole registrar) had been proposed many times, most notably by the <a href=\"https://discovery.nationalarchives.gov.uk/details/r/C9125\" rel=\"nofollow noreferrer\">Lindop Committee</a> which reported on the matter in 1978. The idea of a registrar was developed in the Government's 1982 paper, <em>Data Protection: The Government's Proposals for Legislation</em> (Cmnd 8539), which led up to the Act. That recommended that there be a single independent official who would be accountable for the work, but that he would be assisted by an expert committee. Additionally, a Data Protection Tribunal would take care of the resulting legal disputes. In the actual legislation, the expert committee was not made statutory, because the government felt that it would be too difficult to define what it ought to do in a way that would stand the test of time (see <a href=\"https://hansard.parliament.uk/lords/1983-07-19/debates/b4fd8717-7224-4ca4-8fb5-3a3dae74cfc9/DataProtectionBillHl\" rel=\"nofollow noreferrer\">HL Deb 19 July 1983, vol 443 col 1084</a> for a Lords committee debate on this topic). The "corporation sole" legal structure gives maximal flexibility to how the Registrar would organize the office over time, while still doing the legal mechanics to give it independent personality.</p>\n",
"score": 3
},
{
"answer_id": 90330,
"body": "<blockquote>\n<p>Why must an organisation represent the idea of an individual, rather\nthan the organisation acting in its own capacity while the individual\nsimply sits as its head? . . .</p>\n<p>What function does this notion of a corporation sole serve?</p>\n</blockquote>\n<p>A corporation sole is a way of organizing property ownership for an entity that predates the full development of the idea of an entity as a legal person that was developed primarily in Roman Catholic and Anglican canon law before business corporations came into existence, and is a label that was retroactively applied to this arrangement once the concept of a corporation became widespread.</p>\n<p>In a corporation sole, ownership of property and other legal rights and obligations are vested <em>ex officio</em> in whomever holds a particular office. This was a compromise, similar to the compromise involved in the proto-corporate concept of a "trust" that formally vests ownership of property in a human being serving as a trustee that automatically transfers to a successor trustee. A corporation sole vested property ownership in a human being at a time when it wasn't obvious that there could be such as thing as an entity that was a legal person and sole proprietorships were the norm in the business world, while allowing for continuous succession of that property with the organization while keeping organizational assets separate from personal assets of the person holding the office in question.</p>\n<p>Another purpose of a corporation sole which has contributed to its ongoing use in contexts like the Roman Catholic church is that each corporation sole has limited liability, so when each geographic region or function of the overall organization led by a different official has title to property vested in a corporation sole with limited liability, liability that, for example, makes only the property owned by the corporation sole of on Archbishop liable for that obligation rather than making the entire church denomination responsible for it. It is functionally equivalent to having many wholly owned limited liability subsidiaries of the larger organization.</p>\n<p>Since a corporation sole vests the rights and obligations of this legal person in an office within some organization, however, rather than in the holders of transferrable stock ownership in the organization like an ordinary corporation, it doesn't really make sense for a commercial enterprise, as opposed to a non-profit or a government entity. But the non-transferability and non-alienability of ownership of a corporation sole is a feature rather than a bug within an organization that is contemplated to endure forever.</p>\n<p>Indeed, a corporation sole is a close cousin of the civil law concept of an usufruct, which is a right in property that conveys the right to use the property and utilize its profits, but not to transfer or alienate the property. The difference is that an usufruct may be used to benefit the usufruct holder personally, while the use of the property of a corporation sole and the use of the profits and proceeds from the property of a corporation sole may only legitimately be used to further the ends of the office with which the corporation sole is associated.</p>\n<p>As noted above, a corporation sole even an even closer cousin to vesting ownership of property in a trustee, solely for the purposes of the trust, which can be conveyed by operation of law when a successor trustee takes office. The only difference is that the limited liability aspect of a corporation sole for which the personal assets of the office holder are not responsible is explicit, absolute, and up front in a corporation sole, while it is only implicit and not quite absolute, in the case of the trustee of a trust.</p>\n<p>The use of this relict form of organization for a newly created government office in the U.K. is probably an instance of imitation of the organizational details of some other government office in the U.K.</p>\n<p>Some government offices in the U.K. were organized as corporations sole in imitation of Roman Catholic and Anglican corporations sole, in the era of U.K. history before the concept of ordinary corporations and governments as legal persons was well established and widely accepted. These ancient U.K. offices, like the Chancellorship, then continued to have this organization form out of inertia.</p>\n<p>As result, the corporation sole form of organization continued to be an option on the menu list of how government division in the U.K. could be organized. Someone creating a new government division in the U.K. then decided to copy the corporation sole organizational model, rather than using another model for some reason.</p>\n<p>The reason for choosing a corporation sole option rather than some other organizational option, may have been that the predecessor division of the government office that handled the functions of the newly created government office before it was established as a separate division, was organized in that manner. This would, for example, allow the new government office to almost seamlessly copy the organizational documents of its predecessor agency in a thoughtless way without doing any harm and thus saving time and money in the process of organizing the new agency. But I don't know this to be true for a fact.</p>\n",
"score": 3
}
] |
[
"legal-terms",
"corporate-law",
"common-law",
"incorporation"
] |
Why did the contract writer use both provision and term?
| -2 |
https://law.stackexchange.com/questions/90303/why-did-the-contract-writer-use-both-provision-and-term
|
CC BY-SA 4.0
|
<p>This is a provision in CONTRACT FOR THE
INTERNATIONAL COMMERCIAL
SALE OF GOODS</p>
<ol start="12">
<li>Effects of avoidance in general</li>
</ol>
<p>12.1 Avoidance of this contract releases both parties from their obligation to
effect and to receive future performance, subject to any damages that may be
due.</p>
<p>12.2 Avoidance of this contract does not preclude a claim for damages for
non-performance.</p>
<p>12.3 Avoidance of this contract does not affect any <strong>provision</strong> in this contract
for the settlement of disputes or any other <strong>term</strong> of this contract that is to
operate even after avoidance.</p>
<p>I cannot get why the writer used "provision" and "term" at the same time here. I thought in contracts, we'd have to use only one word throughout the whole thing to avoid misunderstandings</p>
| 90,303 |
[
{
"answer_id": 90328,
"body": "<blockquote>\n<p>Why did the contract writer use both provision and term?</p>\n</blockquote>\n<p>Generally speaking, the usage of either or both terms is inconsequential. It does not alter the meaning of the contract.</p>\n<blockquote>\n<p>I thought in contracts, we'd have to use only one word throughout the whole thing to avoid misunderstandings</p>\n</blockquote>\n<p>There is no rule, requirement, or habit to that effect. A contract can be clear despite using synonyms. Conversely, sticking to only one term in the entire contract does not preclude flaws or ambiguities in the semantics.</p>\n",
"score": 1
}
] |
[
"contract-law",
"international",
"legal-terms",
"sale-of-goods"
] |
resolution vs settlement
| -2 |
https://law.stackexchange.com/questions/90307/resolution-vs-settlement
|
CC BY-SA 4.0
|
<p>This is a provision in CONTRACT FOR THE
INTERNATIONAL COMMERCIAL
SALE OF GOODS</p>
<ol start="12">
<li>Effects of avoidance in general</li>
</ol>
<p>12.1 Avoidance of this contract releases both parties from their obligation to
effect and to receive future performance, subject to any damages that may be
due.</p>
<p>12.2 Avoidance of this contract does not preclude a claim for damages for
non-performance.</p>
<p>12.3 Avoidance of this contract does not affect any provision in this contract
for the <strong>settlement of disputes</strong> or any other term of this contract that is to
operate even after avoidance.</p>
<p>Can I use dispute resolution here to replace settlement?</p>
| 90,307 |
[
{
"answer_id": 90327,
"body": "<blockquote>\n<p>Can I use dispute resolution here to replace settlement?</p>\n</blockquote>\n<p>It depends on whether you as the draftsman of the contract intend settlement to be a preferred method of dispute resolution.</p>\n<p>The term <em>settlement</em> suggests that the parties are the ones who decide how to solve their dispute. That is the purpose of methods such as mediation. By contrast, other methods such as arbitration or judicial proceedings delegate to a non-party the decision of the dispute.</p>\n<p>The act of replacing the term <em>settlement</em> does not by itself preclude settlement as method for dispute resolution. However, that would make harder for a party to persuade the court that the intent of the contract was to give preference to settlement-based methods.</p>\n",
"score": 1
}
] |
[
"contract-law",
"international",
"legal-terms",
"breach-of-contract",
"sale-of-goods"
] |
Can a son be forfeited from inherited property if he refuses to take care of his old parents?
| 1 |
https://law.stackexchange.com/questions/90068/can-a-son-be-forfeited-from-inherited-property-if-he-refuses-to-take-care-of-his
|
CC BY-SA 4.0
|
<p>In Indian law, can a son who disowns his old parents, be deprived of his parents' ancestral properties? What about self acquired property of his parents?</p>
| 90,068 |
[
{
"answer_id": 90114,
"body": "<p>In India, members of most religions are allowed to disinherit some or all of their children, but the freedom of Muslims to do so is much more limited. (<a href=\"https://www.legalservicesindia.com/law/article/1335/8/Law-and-Practice-relating-to-Wills\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>According to the same source:</p>\n<blockquote>\n<p>Under the Muslim Law, a Will (i.e. Wasiyyat) can be made, either\nverbally or in writing. However, as it is a safe practice, where the\nsubject-matter of the Will is immovable property, it is better to make\nit in writing.</p>\n<p>Basically, under the Muslim law, a bequest in favour of any heir is\nnot valid. However, it can be made valid by the consent of other\nheirs, and where such consent is to be obtained after the death of the\ntestator.</p>\n<p>Furthermore, under the Muslim Law, one cannot dispose of, by way of a\nWill, more than one-third (1/3) of his net estate. Here, the net\nestate means that property, which remains after payment or\nsatisfaction of testators debts owing to third persons and the funeral\nexpenses of deceased testator. In other words, up to such one-third of\nnet estate, any Muslim person is free to make a Will. This is a\nmaximum limit of disposable property through the Will; and it is\ncalled as the bequeathable third. However, if in case, more than this\nlimit, property is disposed of by way of Will, then such Will is not\naltogether void, because it could still be validated by the consent of\nall the heirs of such person.</p>\n<p>A Muslim woman can also make a Will.</p>\n</blockquote>\n<p>The inheritance laws of India do not appear to make a distinction between a person's parents' ancestral properties and self acquired property of a parent's parents (although some Southern states in the United States do make that distinction for some purposes as a legacy of the plantation farming system that once existed there).</p>\n<p>Many common law countries (as well as Poland and Lithuania) used to have a form of real estate ownership called "<a href=\"https://en.wikipedia.org/wiki/Fee_tail\" rel=\"nofollow noreferrer\">fee tail</a>" that was designed to keep ancestral properties in the family, but this has been abolished almost everywhere.</p>\n<p>It was abolished in English law in 1925, before India gained independence, so it probably didn't enter into the post-Independence law of India, although I was unable to quickly find a direct statement to that effect. Scotland abolished it in the year 2000, Ireland abolished it in 2009. England and Wales abolished trust terms with the same effect in 1996. Pretty much the only common law jurisdictions where fee tail real property ownership still exists (and then with limitations not present at common law) are the U.S. states of Massachusetts, Maine, Delaware and Rhode Island.</p>\n<p>India's laws have their roots in the common law tradition of English law.</p>\n<p>Many civil law countries (e.g. continental Europe, Latin American, and much of Asia), for example, in the case of Mexico, limit the extent to which children can be disinherited without good cause. But those countries rarely make a distinction between ancestral inherited property of a person's parents and property acquired by a person's parents during their own lives.</p>\n",
"score": 1
},
{
"answer_id": 90320,
"body": "<p>To answer your question, yes, the son <em>can</em> be prevented from acquiring the property.</p>\n<p>In Indian law, under Section 23 of the Maintenance and Welfare of Senior Citizens Act, 2007, any transfer of property by a parent which is conditioned on the provision of maintenance to the parent is void if such condition is not complied with.</p>\n<p>Further, <a href=\"https://indiankanoon.org/doc/73281449/\" rel=\"nofollow noreferrer\">courts of record</a> in certain state jurisdictions in India have interpreted the above provision to imply the provision of bare necessities to parents, or of welfare of the transferee's parents, <a href=\"https://indiankanoon.org/doc/193708272/\" rel=\"nofollow noreferrer\">the transfer for such purposes itself being implied by co-habitation.</a></p>\n",
"score": 0
}
] |
[
"property",
"india",
"inheritance",
"probate",
"religious-law"
] |
"Be to verb" in contract
| 0 |
https://law.stackexchange.com/questions/90310/be-to-verb-in-contract
|
CC BY-SA 4.0
|
<p>This is a provision in CONTRACT FOR THE
INTERNATIONAL COMMERCIAL
SALE OF GOODS</p>
<blockquote>
<ol start="12">
<li>Effects of avoidance in general</li>
</ol>
<p>12.1 Avoidance of this contract releases both parties from their obligation to effect and to receive future performance, subject to any damages that may be due.</p>
<p>12.2 Avoidance of this contract does not preclude a claim for damages for non-performance.</p>
<p>12.3 Avoidance of this contract does not affect any provision in this contract for the settlement of disputes or any other term of this contract that <strong>is to operate</strong> even after avoidance.</p>
</blockquote>
<p>Why did they use <strong>is to verb</strong> structure here to refer to the future? Is it because of the legalese language style?</p>
| 90,310 |
[
{
"answer_id": 90319,
"body": "<p>It gets much clearer if you cut the sentence to the actual operative sentence:</p>\n<blockquote>\n<p>12.3 <strong>Avoidance of this contract does not affect</strong> any provision in this contract for the settlement of disputes or <strong>any other term of this contract that is to operate even after avoidance</strong>.</p>\n</blockquote>\n<p>The sentence explains which provisions are not affected by avoidance: those that go for settlement (normal stance) or any other term that is still operating when avoidance takes place. <a href=\"https://www.gymglish.com/en/gymglish/english-grammar/is-to-do-something\" rel=\"nofollow noreferrer\"><em>Is to do</em> is a normal grammatical construction.</a></p>\n<p>The "is to do" in this case can be grammatically replaced by "which will" and keep the meaning: Avoidance of this contract does not affect any other term of this contract which will operate even after avoidance.</p>\n<p>In other words, the term 12.3 is a typical severing clause, pointing out that certain other clauses (which will point this out) won't be stopped from operation by avoidance.</p>\n",
"score": 2
}
] |
[
"contract-law",
"international",
"legal-terms",
"sale-of-goods"
] |
How does Australia split its legal profession?
| 11 |
https://law.stackexchange.com/questions/77092/how-does-australia-split-its-legal-profession
|
CC BY-SA 4.0
|
<p>I just got an interesting edit suggestion to <a href="https://law.stackexchange.com/questions/77060/why-did-christopher-tran-warn-judge-kelly-about-the-minister-for-immigrations-p">my recent question</a> by someone who <em>just</em> registered (perhaps for the purpose of this edit suggestion).</p>
<p>It proposes that "lawyer" is replaced with "junior barrister" because:</p>
<blockquote>
<p>australia splits its legal profession, so "lawyer" is wrong</p>
</blockquote>
<p>It also injects a link to the professional profile of the person cited in the question.</p>
<p><a href="https://i.stack.imgur.com/GAwm6.png" rel="noreferrer"><img src="https://i.stack.imgur.com/GAwm6.png" alt="enter image description here" /></a></p>
<p>What is the deal with the splitting of the legal profession in Australia?</p>
<p>Is that just barristers and solicitors, pretty much like in New Zealand? Or something else? Is it actually wrong to call members of the legal profession in Australia lawyers?</p>
<p>I would guess that "lawyer" is just a general term, and the lack of specificity does not make it wrong. Am I wrong?</p>
<p>(I presume the actual purpose of the suggested edit is to inject the link and could speculate on who the user is, but that is irrelevant to this question.)</p>
| 77,092 |
[
{
"answer_id": 77102,
"body": "<p>In many Common Law nations, the distinction between solicitor and barrister is that the solicitors traditionally have direct access to clients and do much of the paperwork and discuss the planning with the clients. In some jurisdictions it was/is common practice that the barrister is not hired by the client but appointed by the judge. The barrister in turn works with the solicitor and presents the case in the court and has little to no access to the client.</p>\n<p>Historically, the division was much more stark, with solicitors working in the Court of Equity and barristers working in the Court of Common Law. Around the mid-1800s, the Court of Equity became defunct in the Common Law Legal system with the Court of Common Law fulfilling its duties and many Common Law nations changing how the split among lawyers now functions (often requiring separate tests to be a solicitor and a barrister).</p>\n<p>The split remains in England, Wales, Scotland, three states in Australia (New South Wales, Queensland, and Victoria), Ireland (both the Republic and Northern Ireland), and Hong Kong. In these jurisdictions, a lawyer will hold only one title. In jurisdictions where lawyers may, or even are expected to, hold both titles, the system is called a “fused system”. Here, lawyers start their careers as one of the two and pick up the license to act in the other capacity later if they choose. This covers the jurisdictions of Canada, Malaysia, Singapore, New Zealand, and the remaining Australian states. (Because Australia has a mix of fused and separated systems and state reciprocation, the three states with a separated system will reciprocate for states that allow for fusion. The reverse is not necessary, as fused states would only allow them for the license they already have.)</p>\n<p>The United States is fully fused and all lawyers are solicitor-barristers, for comparison’s sake. This is why the U.S. uses “attorney” and “lawyer” interchangeably despite the former being another term for barrister in certain jurisdictions (namely Scotland) while the latter term refers to solicitors and barristers collectively. The U.S. did previously have a separate system, but completely fused when Courts of Equity disappeared in the 1850s and, therefore, the term “solicitor” is still used in the legal profession, though these days it tends to be an artefact title for an office or position that predated the fusion (e.g., The Solicitor General of the United States a.k.a. the lawyer whose office represents the federal government in the Supreme Court). Modern usage of “solicitor” tends to refer to a government lawyer, and most of the states with Solicitor offices are one of the Original 13 States (not all of them, though). Only three states that were not part of the original 13 use the term (Ohio, West Virginia (likely a hold over from when it was part of Virginia, which no longer uses the term), and Oklahoma). It should be noted the average U.S. Citizens associate the word <em>solicitor</em> with traveling salesman or door-to-door evangelizers, and generally use the term in signage forbidding the practice on private property.</p>\n",
"score": 29
},
{
"answer_id": 77093,
"body": "<p>According to <a href=\"https://lawpath.com.au/blog/what-is-the-difference-between-a-lawyer-and-a-barrister\" rel=\"noreferrer\">this Australian source</a> the terms have the same meaning as every other jurisdiction I am familiar with:</p>\n<blockquote>\n<p>Barristers are lawyers, but not all lawyers are barristers.</p>\n</blockquote>\n",
"score": 16
},
{
"answer_id": 77094,
"body": "<h2>Lawyer is perfectly fine</h2>\n<p>Lawyer is a catch-all term for both <a href=\"https://en.wikipedia.org/wiki/Barrister\" rel=\"noreferrer\">barristers</a> and <a href=\"https://en.wikipedia.org/wiki/Solicitor\" rel=\"noreferrer\">solicitors</a>.</p>\n",
"score": 13
},
{
"answer_id": 90317,
"body": "<p>The Australian legal profession is separately regulated in each State and Territory.</p>\n<p>Each State and Territory has a de facto split profession, in that there is a group of lawyers known as the independent bar of that jurisdiction, who practise exclusively as barristers and conduct the majority of litigation in the higher courts.</p>\n<p>Each State and Territory has a de jure fused profession, in that all lawyers are required to be admitted to the legal profession by a State or Territory Supreme Court, and all practising lawyers are entitled to appear in the higher courts, although in practice this work is mostly done by barristers.</p>\n<p>There are differences in the specific rules and practices that apply to barristers in each jurisdiction, which causes debate and confusion about whether the Australian legal profession is split or fused. The relevant differences are:</p>\n<ul>\n<li><p>In NSW, Victoria and Queensland, lawyers are required to pass bar exams administered by the local bar association in order to call themselves barristers.</p>\n</li>\n<li><p>In NSW and Queensland, the local bar association (like the Inns of Court) is also the regulatory body that issues practising certificates and investigates and disciplines barristers.</p>\n</li>\n<li><p>In the smaller jurisdictions, membership of the bar association, and other professional obligations of barristers such as self-employment, may not be legally required to use the title of barrister. While there is an independent bar consisting of members of the bar association who voluntarily comply with the professional obligations of barristers, lawyers employed by law firms\nand the government conduct a greater proportion of the advocacy in these jurisdictions.</p>\n</li>\n</ul>\n",
"score": 2
}
] |
[
"legal-terms",
"australia",
"lawyer",
"definition",
"barristers"
] |
Are underage people allowed to defend themselves in court?
| 22 |
https://law.stackexchange.com/questions/90260/are-underage-people-allowed-to-defend-themselves-in-court
|
CC BY-SA 4.0
|
<p>Bob is underage, yet commits a severe criminal act that's worthy of going to trial. Normally, one is allowed to represent themselves in court, however ill-advised that may be. But is Bob, underage as he is, allowed that same right?</p>
<p>Feel free to set the age/crime to be whatever such that Bob would appear in court underage.</p>
| 90,260 |
[
{
"answer_id": 90274,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The Supreme Court has affirmed the constitutional right to self-representation in <a href=\"https://supreme.justia.com/cases/federal/us/422/806/\" rel=\"noreferrer\">Faretta v California</a>, but in <a href=\"https://supreme.justia.com/cases/federal/us/509/389/\" rel=\"noreferrer\">Godinez v. Moran</a>, the court injected the logically prior question of competence, rejecting a mixed-bag approach to competence. The court held that</p>\n<blockquote>\n<p>when a defendant seeks to waive his right to counsel, a determination\nthat he is competent to stand trial is not enough; the waiver must\nalso be intelligent and voluntary before it can be accepted. While\nStates are free to adopt competency standards that are more elaborate\nthan the Dusky formulation, the Due Process Clause does not impose\nthem.</p>\n</blockquote>\n<p>The specific issue in this case is competence to plead guilty. In <a href=\"https://supreme.justia.com/cases/federal/us/554/164/#tab-opinion-1962728\" rel=\"noreferrer\">Indiana v. Edwards</a>, the court stated that there is no absolute right to self-representation if one is competent to stand trial. It is held that</p>\n<blockquote>\n<p>The Constitution does not forbid States from insisting upon\nrepresentation by counsel for those competent enough to stand trial\nbut who suffer from severe mental illness to the point where they are\nnot competent to conduct trial proceedings by themselves.</p>\n</blockquote>\n<p>One conclusion to be drawn from this is that states may but are not required to insist on a specific competence to self-represent, so there <em>can</em> be multiple standards of competence. Second, the Edwards court put the issue more in the realm of questions of insanity, where the limit imposed on a technical minor would have to be a substantial finding of incompetence, and not just a statutory declaration that anyone below the age of 18 is <em>ipso facto</em> incompetent to legally defend themselves but they can be competent to stand trial.</p>\n<p>In <a href=\"https://supreme.justia.com/cases/federal/us/528/152/\" rel=\"noreferrer\">Martinez v. Court of Appeal of California</a>, the court further held that nothing "requires a State to recognize a constitutional right to self-representation on direct appeal from a criminal conviction".</p>\n<p><a href=\"https://www.ojp.gov/pdffiles1/nij/grants/253015.pdf\" rel=\"noreferrer\">This study</a> indicates that individual states have not eagerly cleared the path to minor self-representation, noting that "Many states permit waiver by a juvenile after cursory inquiry by the court", but "Others require that\nthe juvenile consult with a parent, lawyer or other adult". Nevertheless, "waiver of counsel is, almost without exception, connected to an 'admission,' or guilty plea", simply asserting that "Juveniles do not\nrepresent themselves at trial", and what minors waive is the right to trial. There is a lack of relevant case law citations in this study, in that no ruling is cited where the court affirms that minors are automatically incompetent to represent themselves in a criminal trial. The specifics of the qualifier "almost without exception" would be very relevant to this question.</p>\n",
"score": 17
},
{
"answer_id": 90264,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Assuming Bob is above the age of criminal responsibility, it appears that he could not act as a <a href=\"https://en.wikipedia.org/wiki/Litigant_in_person\" rel=\"noreferrer\">Litigant in Person</a> (know as <a href=\"https://en.wikipedia.org/wiki/Pro_se_legal_representation_in_the_United_States\" rel=\"noreferrer\"><em>pro se</em></a> is the USA).</p>\n<p>Although there is no statutory bar to the contrary (that I can find, but I'm still working on it) my reading of the Judicual College's <a href=\"https://www.judiciary.uk/guidance-and-resources/july-2022-interim-revision-of-the-equal-treatment-bench-book-issued/\" rel=\"noreferrer\">Equal Treatment Bench Book</a> at Chapter 1: <em>Litigants in Person and Lay Representatives</em> where it says...</p>\n<blockquote>\n<p>12 ...everybody of <strong>full age</strong><sup>1</sup> and capacity is entitled to be heard in person by any court or tribunal...</p>\n</blockquote>\n<p>... means that those not yet at "full age" are excluded - but it's difficult to prove a negative.</p>\n<p>Note that the Equal Treatment Bench Book says at paragraph 2 of its Introduction, on page 5, although it ...</p>\n<blockquote>\n<p>... does not express the law, judges are encouraged to take its guidance into account wherever applicable. It is increasingly cited in judgments and by practitioners as to the approach to be adopted.</p>\n</blockquote>\n<p>So, as I say, I will keep looking for legislation to provenance this judicial guidance.</p>\n<hr />\n<p><sup>1</sup> For clarity: "full age", also known as the age of majority, is 18 years old and defined by <a href=\"https://www.legislation.gov.uk/ukpga/1969/46/section/1?timeline=false\" rel=\"noreferrer\">section 1(1)</a>, Family Law Reform Act 1969:</p>\n<blockquote>\n<p>...a person shall attain full age on attaining the age of eighteen...</p>\n</blockquote>\n",
"score": 15
},
{
"answer_id": 90268,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Generally, yes: an accused young person (a person twelve years old or older, but less than eighteen years old) who is fit to stand trial has the right to represent themself.</p>\n<p>While an accused young person has the right to counsel, as well as access to legal-aid or state-funded counsel (see <em>Youth Criminal Justice Act</em>, <a href=\"https://www.laws-lois.justice.gc.ca/eng/acts/y-1.5/page-3.html#docCont\" rel=\"noreferrer\">s. 25</a>), they cannot be forced to be represented by counsel unless the court is not satisfied that the accused understands (1) the charges, (2) consequences of an adult sentence (if applicable), and (3) the election between a judge-alone trial and a judge-and-jury trial (see <a href=\"https://www.laws-lois.justice.gc.ca/eng/acts/y-1.5/page-4.html#docCont\" rel=\"noreferrer\">s. 32</a>).</p>\n",
"score": 12
},
{
"answer_id": 90266,
"body": "<h2>Most certainly impossible in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<blockquote>\n<p>yet commits a severe criminal act that's worthy of going to trial</p>\n</blockquote>\n<p>This implies that the case is held in front of the Jugendstrafgerichtskammer. Because it is a criminal court, you will are required to be given a Pflichtverteidiger (Defense attorney) according to <a href=\"https://www.gesetze-im-internet.de/stpo/__140.html\" rel=\"nofollow noreferrer\">§ 140 StPO</a>. Atop that, this is in front of the Jugendgericht, so <a href=\"https://www.gesetze-im-internet.de/jgg/__68.html\" rel=\"nofollow noreferrer\">§ 68 JGG</a> applies, reiterating that when prosecuting a youth for a crime that requires a Pflichtverteidiger for adults, the youth has to be given one, but adds other cases where the minor gets an attorney on court mandate.</p>\n<p>Now, while §140 (1) StPO only demands the defendant to get an attorney to assist their defense while mostly representing themselves, $140 (2) StPO is there to force the attorney to do everything in case:</p>\n<blockquote>\n<p>(2) Ein Fall der notwendigen Verteidigung liegt auch vor, wenn wegen der Schwere der Tat, der Schwere der zu erwartenden Rechtsfolge oder wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung eines Verteidigers geboten erscheint oder <strong>wenn ersichtlich ist, dass sich der Beschuldigte nicht selbst verteidigen kann.</strong></p>\n</blockquote>\n<blockquote>\n<p>(2) In all other cases, the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary due to the severity of the offence, due to the difficult factual or legal situation, <strong>or if it is evident that the accused cannot defend himself.</strong> <br><sup>(from the somewhat outdated <a href=\"https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p1266\" rel=\"nofollow noreferrer\">english version</a>)</sup></p>\n</blockquote>\n<p>In Germany, it is general consensus, that a person below 18 can not effectively defend themselves without assistance, and that even a person up to 21 can be treated as a youth in front of the court. For this, the Jugendgerichtshilfe will evaluate if they are to be treated as an adult between 18 and 21. While a youth between 14 and 18, it is nigh impossible to be allowed to defend yourself alone. While the accused has technically the right to speak and make injections, the younger they are the more the court will lean to the side that they are not mentally in the capacity to understand everything happening and request the lawyer to take extra steps to make sure the defendant doesn't hurt their own case. Older people tried at the Jugendgericht will only have mandatory assistance in a court-appointed lawyer to explain things and try to inform them of rights and duties and assist as needed - which can start at assisting in filings up to taking over the defense fully.</p>\n",
"score": 10
},
{
"answer_id": 90288,
"body": "<p>Not only can children represent themselves, in the US, thousands have had to represent themselves in deportation trials without the option to have a lawyer. <a href=\"https://www.hrw.org/news/2016/03/14/us-children-face-deportation-without-lawyers\" rel=\"noreferrer\">https://www.hrw.org/news/2016/03/14/us-children-face-deportation-without-lawyers</a></p>\n<p>Specifically, there have been 3 year olds who have had to (very unsuccessfully) represent themselves in court.</p>\n",
"score": 6
}
] |
[
"united-states",
"criminal-law",
"court",
"trial",
"juvenile-law"
] |
How are courts' official case law archives distributed and stored?
| 2 |
https://law.stackexchange.com/questions/90297/how-are-courts-official-case-law-archives-distributed-and-stored
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CC BY-SA 4.0
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<p>For example, what medium are they recorded/stored in? Is it a hybrid/mix as technology has evolved?</p>
<p>And, does a court automatically receive copies of all other regional courts of the same and higher degree of superiority's decisions periodically? Or would a Willesden County Court archive only have case decisions that were issued in that facility / court division?</p>
<p>And how far back would they go?</p>
| 90,297 |
[
{
"answer_id": 90299,
"body": "<blockquote>\n<p>How are courts' official case law archives distributed and stored?</p>\n</blockquote>\n<p>Staring around the late 18th or early 19th century, until sometime in the second half of the 20th century, private commercial published firms with a legal publication specialty regularly collected paper copies of reasoned court opinions in appellate cases from court clerks or parties to cases, retype set the opinions, and published them in bound volumes of appellate decisions, which were then sold to law firms and law libraries, usually, but not always, with editorial annotations.</p>\n<p>For part of this time period, there were in addition or in lieu of independently operating publishing firms that published reports of appellate court decisions, officially sanctioned private publishing companies that did so on a commissioned basis by the governmental entity whose decisions were published in officially sanctioned court reporting volumes, usually with less editorial annotation.</p>\n<p>There are reported cases going back hundreds of years before that in England and Wales, but mostly, the selection of cases that were reported was sporadic and opportunistic, rather than comprehensive in this time period. Also, some of the earliest English law case are recounted only in second hand reports of those decisions, rather than in verbatim transcripts of oral decisions of (or in the original verbatim written opinions of) the judge or lord making the decision. Sometimes these second hand accounts were the equivalent of personal notes of the barristers or other participants in the case, and sometimes these second hand accounts were the practical equivalent of newspaper accounts of the cases in question. But, at other times they were part of the official records of the court or lord making the decision. Record keeping in that era was somewhat irregular and inconsistent. Even when contemporaneous official records were made by the court deciding the cases in question, sometimes the original records have now been lost or destroyed.</p>\n<p>The courts and law firms then used these report of decided cases to authoritatively identify appellate court precedents, typically by reporter name, volume, and the page upon which the court decision appeared.</p>\n<p>Later on, other specialty commercial publications indexed instances in which one case cited to another case to facilitate determinations regarding whether old case precedents were still good law or had been overruled in part of in full, or questioned, by later cases.</p>\n<p>The publication of court opinions in electronic form first starts to appear in the 1970s or 1980s, initially in bulk "sneaker net" media usable only by firms with mainframe computers before widespread personal computer ownership and the widespread availability of Internet access made individual court opinions in electronic form widely available on a case by case basis. Electronic form court opinion publication had become ubiquitous by sometimes around the first decade of the 21st century, with non-proprietary government sponsored neutral citation forms appearing widely five to ten years after and only becoming the majority practice in the second decade of the 21st century. The dead tree paper form court reporters continue to be published (now from electronic rather than paper originals) in almost all jurisdictions where they were historically published.</p>\n<p>Trial court case opinions were historically not distributed at all except by interested parties obtaining copies from the court clerk or the party that served the documents upon them, and except for sporadically collected exceptional trial court rulings, this continued to be the norm until sometime in the last twenty-five years of the 20th century or the early 21st century.</p>\n<blockquote>\n<p>would a Willesden County Court archive only have case decisions\nthat were issued in that facility / court division?</p>\n<p>And how far back would they go?</p>\n</blockquote>\n<p>There are two separate judicial branch operations to consider.</p>\n<p>The court clerk has an official archive of case decisions only from that facility/court division/court clerk's office administrative unit, historically, in part form, then in microfiche, and now in electronic form spanning various kinds of media over the late 20th century and early 21st century as these technologies developed. I am not familiar with the record retention practices of different courts and archival indexes often note that significant subsets of records in particular places that were once kept in paper form have been destroyed by mishaps such as fires, floods, riots, building collapses, mold, paper decay, and plumbing emergencies, so in any particular location the extent of the archive's completeness varies.</p>\n<p>There was a major effort to preserve old records on michofiche when that technology was invented, and some kinds of records were maintained on papers and in conditions better suited to document preservation than others. Of course, reporters decisions survived better since there were many copies of each one and so some editions of each volume of case reporters usually survived and some were republished from time to time.</p>\n<blockquote>\n<p>does a court automatically receive copies of all other regional courts\nof the same and higher degree of superiority's decisions periodically?</p>\n</blockquote>\n<p>A separate operation of many courts is the maintenance of a law library for use by the judges of the court and also by law firms and lawyers and members of the public who could not afford to have their own law libraries.</p>\n<p>This operation would typically order all of the case reporters, statutory compilations, legal treatises, and other legal authorities that the particular law library's users would need and that it could afford within its budget. Typically, regional law libraries were serviceable and sufficient but not on a par with the best university law libraries and the law libraries of the most important appellate courts. Often volumes in law libraries had to be used on the premises and could not be removed from the library room or building which was usually in or near either a court house or a university or was a part of a public library.</p>\n<p><strong>Caveat</strong></p>\n<p>All dates in this answer are approximate.</p>\n",
"score": 2
}
] |
[
"court",
"legal-citation",
"case-reports"
] |
In California, do people still get benefits if they got terminated earlier than the date that they gave?
| 0 |
https://law.stackexchange.com/questions/90191/in-california-do-people-still-get-benefits-if-they-got-terminated-earlier-than
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CC BY-SA 4.0
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<p>For example, Sam gives notice to his boss, saying that he is moving out California soon, so Sam decided not to come to work after 2 weeks. After that notice, his boss started finding people fit Sam's position.
After 13 days, one day earlier than 2 week, his boss told Sam that day is his last day at the end of work. ADDED(Sam have not done any thing wrong, from Sam's knowledge: his boss just doesn't want to pay extra day of salary since a new person is found for Sam's position.)</p>
<p>Q. Is Sam still cover by Unemployment Benefits, Severance Pay?</p>
| 90,191 |
[
{
"answer_id": 90210,
"body": "<p>Sam is not entitled to unemployment benefits because it is a voluntary quit.</p>\n<p><em>There's an exception where a person can argue that even though it looked like a voluntary quit, it really wasn't. The person might have learned they were about to lay off everyone in the state (and then that happened). Or been told "Please turn in your resignation by the end of the day", a common executive courtesy allowing you to save face. Since those aren't really voluntary quits, the employment office will accept them as layoffs.</em> *</p>\n<p>So the way I see it, that sword cuts both ways. If a layoff is viewed as a <em>fait accompli</em> even if there's a resignation a few days prior.... then a voluntary resignation is a <em>fait accompli</em> even if there's a layoff a day prior.</p>\n<p>In fact it is very common for employers to say "Thanks for the 2 weeks notice. Go pack your stuff, today is your last day in the office" (sometimes with a guard watching you pack your stuff and walk out the door). The remaining 2 weeks are either a gift from the employer, or come out of your accumulated sick or vacation time. At workaholic IBM this often amounted to <em>months</em> - "I'm quitting as of May 2. My last day in the office will be December 30."</p>\n<p>* However, if Sam's behavior met the unemployment office's definition of "fired for cause", e.g. stealing, then Sam is not eligible for unemployment.</p>\n",
"score": 2
}
] |
[
"employment",
"california"
] |
Why are religious figures given the status of "legal person" in India?
| 3 |
https://law.stackexchange.com/questions/90254/why-are-religious-figures-given-the-status-of-legal-person-in-india
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CC BY-SA 4.0
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<p>In India, religious figures have been given the status of legal person, and from the case law, I've read there doesn't seem to be a clear rationale for this. Corporations and organizations are also given the status of a legal person. Does this mean that if a significant amount of people associate with something it can gain the status of a legal person? By this logic, can say fictional characters get the status of a legal person as well? and would it effect copyright law in any way ?</p>
| 90,254 |
[
{
"answer_id": 90259,
"body": "<h3>Overview</h3>\n<blockquote>\n<p>In India, religious figures have been given the status of legal\nperson, and from the case law, I've read there doesn't seem to be a\nclear rationale for this.</p>\n</blockquote>\n<p>The basic problem is how to treat property dedicated for religious purposes in a way that makes sense in the context of the religion in question, because any time property is involved in something, the secular law must be able to rule upon those property rights.</p>\n<p>There is more than one possible solution for how to handle this in cases in which a legal person is something other than a way to carry on business for profit on behalf of investors when a legal person basically has no "owners".</p>\n<p>Charitable foundations, charitable trusts, corporations sole, non-profit corporations with self-perpetuating boards, or non-profit corporations managed democratically by their members or stakeholders are all possible legal tools to handle this problem.</p>\n<p>In India, a charitable foundation model in which the charitable foundations are named after a Hindu Idol or religious figure is the way it is handled for religions other than Christianity or Islam, while something close to a corporation sole that can own property model (whose managers are appointed and may be removed by their superiors in the denomination) is used for Christian places of worship. In Muslim mosques, in contract, the succession of inherited trustees of Muslim mosques is treated as an entity separate from the Mosque itself.</p>\n<p>Indian religious institutions and charities generally have a hereditary, or at least, non-democratic, organizational model, rather than the democratic governance model of Protestant Christianity that began with the Calvinists in the Protestant Reformation.</p>\n<p>When the managers of these religious institutions are not subject to being voted out by the members of the religious institution that they serve (which is particularly unworkable when someone doesn't necessary "belong" to one or many temples where the worshipper might make a pilgrimage), the conduct of the manager of the temple needs to be regulated by law, as opposed to being regulated by being democratically selected by the members of the religious institution.</p>\n<p>The important thing is that property belong to the legal person is not just the ordinary private property of the sebait who manages it, even though the property is managed by private individuals who have authority over a Hindu temple and they pass this authority on in a manner very similar to succession to their personally owned property, in part because the temple is often effectively the family's own small business. But the legal personhood of the temple's idol or religious figure makes it clear that this is not just the private property of these private individuals to do with as they please.</p>\n<p>Instead, the private individual called a sebait who manages the affairs of this legal person and usually inherited this authority from a relative, has fiduciary-like duties to the worshippers who use the property belonging to this legal person to conduct religious activities. Thus, the sebait has a legal duty to put the worshipper's interests above the sebait's personal financial interests beyond fair compensation for the sebait's duties. If the sebait does not do so, a court can punish the sebait or take other appropriate action to redress this misconduct.</p>\n<h3>Religious Legal Persons In India Outside Christianity And Islam</h3>\n<p>The way this is handled is discussed at length in Saji Koduvath, Advocate, "<a href=\"https://indianlawlive.net/2022/03/12/legal-personality-of-temples-gurudwaras-churches-and-mosques/\" rel=\"nofollow noreferrer\">Legal Personality of Temples, Gurudwaras, Churches and Mosques</a>" (March 12, 2022), which I summarize and quote from below.</p>\n<p>For Hindus, Indian law has held that:</p>\n<blockquote>\n<p>The Hindu Law, like the Roman Law and those dervied from it,\nrecognises not only incorporate bodies with rights of property vested\nin the Corporation apart from its individual members but also\njuridical persons called foundations. A Hindu who wishes to establish\na religious or charitable institution may according to his law express\nhis purpose and endow it and the ruler will give effect to the bounty\nor at least, protect it so far at any rate as is consistent with his\nown Dharma or conception or morality. A trust is not required for the\npurpose; the necessity of a trust in such a case is indeed a\npeculiarity and a modern peculiarity of the English Law. In early law\na gift placed as it was expressed on the altar of God, sufficed it to\nconvey to the Church the lands thus dedicated. It is consistent with\nthe grants having been made to the juridical person symbolised or\npersonified in the idol. Thus, a trust is not necessary in Hindu Law\nthough it may be required under English Law.</p>\n</blockquote>\n<p><em>See Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass</em> (AIR 2000 SC 1421) citing <em>Yogendra Nath Naskar Vs. Commissioner of Income Tax</em>, Calcutta, 1969 (1) SCC 555 which in turn cited <em>Manohar Ganesh Vs. Lakshmiram</em>, ILR 12 Bom 247.</p>\n<p>Thus, while the law of India largely follows the model of the common law, in this respect, the recognition of a Hindu Idol or deceased or divine religious figure when property has been dedicated for this "pious purpose" as a legal person has the practical effect of establishing a European civil law style charitable foundation.</p>\n<p>This makes sense because the organizational structure of temples in pagan Rome, whose organizational structures were described as foundations in the Rome laws that memorialized these practices (which was then received as the law of Europe after the Middle Ages and codified in European civil codes), was similar to the traditional organizational structure of temples in Hindu India today.</p>\n<blockquote>\n<p>[T]he procedure in India takes account, necessarily, of the\npolytheistic and other features of the Hindu religion and recognises\ncertain doctrines of Hindu law as essential thereto, e.g., that an\nidol may be the owner of property. The procedure of our Courts allows\nfor a suit in the name of an idol or deity though the right of suit is\nreally in the <a href=\"https://indiankanoon.org/search/?formInput=sebait&pagenum=1\" rel=\"nofollow noreferrer\">sebait</a> [<em>Jagadindranath v. Hemmta Kumari</em> [L.R. 31 I.A.\n203: s.c. 8 C.W.N. 609 (1605).]</p>\n</blockquote>\n<p><em>See The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar</em> AIR 1940 PC 116.</p>\n<p>The organizational structure of a Hindu temple is similar to that of a Shinto shrine in Japan. Management of it is ordinarily vested in a priestly family established in that role by the temple's founder the religious leader of which is called the sebait, and this role is passed down in a manner similar to the inheritance of property except that it may not be divided to multiple heirs in most cases. The sebait, like the trustee of a charitable trust, or a director of a charitable foundation, is duty bound to act in furtherance of the temple's purpose and may be subject to secular court sanctions if this role is abused.</p>\n<p>Effectively, the Hindu Idol or Gurdwaras that is treated as a legal person is simply the name of the charitable foundation created in this manner as a matter of style. But, even though, for example, some Hindu Idols are legal persons, this is basically a metaphor.</p>\n<blockquote>\n<p>an Idol as a juridical person is the ‘ideal embodiment’ of a pious or\nbenevolent idea.</p>\n</blockquote>\n<p><em>See M. Siddiq (D) v. Mahant Suresh Das</em> (2020-1 SCC 1) citing <em>Manohar Ganesh Tambekar Vs. Lakhmiram</em> (1887), ILR (1888) 12 Bom 247.</p>\n<p>Thus, the physical idol itself is not the real legal person, the real legal person is the charitable foundation named after the physical idol which the idol represents.</p>\n<blockquote>\n<p>In the case of Hindu idols, legal personality is not conferred on the\nidol simpliciter but on the underlying pious purpose of the continued\nworship of the deity as incarnated in the idol. Where the legal\npersonality is conferred on the purpose of a deity’s continued\nworship, moving or destroying the idol does not affect its legal\npersonality.</p>\n</blockquote>\n<p><em>See M. Siddiq (D) v. Mahant Suresh Das</em> (2020-1 SCC 1).</p>\n<p>Who are the beneficiaries of these charitable foundations?</p>\n<blockquote>\n<p>the true beneficiaries of religious endowments are not the idols but\nthe worshippers, and that the purpose of the endowment is the\nmaintenance of that worship for the benefit of the worshippers</p>\n</blockquote>\n<p><em>See M. Siddiq (D) v. Mahant Suresh Das</em> (Ayodhya case: 2020-1 SCC 1) citing <em>Deoki Nandan Vs. Murlidhar</em> (1957): AIR 1957 SC 133.</p>\n<h3>Legal Personhood v. Charitable Trusts</h3>\n<p>The treatment of these arrangements as legal persons rather than as charitable trusts, as the English common law would be inclined to do, does have solid reasoning behind it.</p>\n<p>This distinction really just cures the defects associated with trusts and estates in English law, which are basically "proto-corporations".</p>\n<p>In English law, in some technical respects, trusts are treated as legal obligations of a human being who is the current trustee, rather than as an entity. English law does this even though the modern concept of a trust is really closer to an entity than to a private individual who has legal obligations. The reason English law has this rather muddy and mixed non-entity concepts embedded in its trust law is that the concept of a legal person was not well developed when the English developed their law of trusts.</p>\n<p>Modern corporations are a later outgrowth of concepts originally but incompletely developed in the context of English trust law.</p>\n<p>Treating a Hindu temple as a legal person named after its idol or religious figure for legal purposes strips away the vestigial and dysfunctional non-entity concepts found in English trust law.</p>\n<h3>Christian and Muslim Places Of Worship Compared</h3>\n<p>Notably, the law of India does not treat Christian churches or Muslim mosques in the same way.</p>\n<p><strong>Christian Church Ownership In India</strong></p>\n<p>Christian churches are usually, unless the church forms a charitable trust or other organizational structure, treated as a <a href=\"https://en.wikipedia.org/wiki/Corporation_sole\" rel=\"nofollow noreferrer\">corporation sole</a>, which is basically a non-profit corporation, but with its governance vested in eternal succession in whomever holds a particular position (e.g. Archbishop of Delhi) within the Christian denomination that established or acquired the church. Thus, the physical building that is the church itself is merely one more piece of property owned by the corporation sole which is governed by the general law that applies to property owned by corporations. <em>See Daisy AP v. Bishop Dr. Thomas Mar Koorilose</em>, 2015-5 KHC 914; 2016-1 KLT 268.</p>\n<p>To some extent this position was adopted because this is the way that Roman Catholic and Anglican <a href=\"https://en.wikipedia.org/wiki/Canon_law\" rel=\"nofollow noreferrer\">Canon law</a> characterized the situation. Canon law did so in these large Christian denominations because in these faiths, churches are not effectively "family businesses" governed by a priestly family that passes on that duty from generation to generation. Instead, in these Christian denominations, the entire denomination is one big bureaucracy whose managers are appointed and removed at will by their superiors in the bureaucracy.</p>\n<p>Put another way, Hindu temples and Mosques (discussed below) are basically independent small firms, while Christian churches are basically wholly owned subsidiaries of the denomination that they serve.</p>\n<p><strong>Muslim Mosque Ownership In India</strong></p>\n<p>Likewise, Indian law does not take this position with respect to Muslim Mosques. <em>See Mohamed Shafindeen Vs. Chatur Bhaj</em> (1958), 1958 Raj. LW 461, and <em>M. Siddiq v. Mahant Suresh Das</em> (2020-1 SCC 1) overruling <em>the Mosque Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar</em>, AIR 1940 P C 116 in which it had held following decisions from Punjab that Mosques were legal persons.</p>\n<p>In reaching that decision in the year 2020, the highest court in India observed in <em>M. Siddiq v. Mahant Suresh Das</em> (2020-1 SCC 1) that:</p>\n<blockquote>\n<p>The decisions recognising a mosque as a ‘juristic person’ appear to be\nconfined to the Punjab : 153 PR 1884; Shankar Das v. Said Ahmad (1884)\n153 PR 1884 59 PR 1914; Maula Bux v. Hafizuddin (1926) 13 AIR Lah 372:\nAIR 1926 Lah 372.</p>\n</blockquote>\n<p>This is despite the fact that the way the Mosque in the 1940 case was established (and for what it is worth, the typical way that a Mosque is established in Islam more generally), is very similar to the way that a Hindu temple or Shinto shrine or Greek family church is established. The court in the same case, <em>M. Siddiq v. Mahant Suresh Das</em> (2020-1 SCC 1), noted that:</p>\n<blockquote>\n<p>In that case, a mosque was dedicated in 1722 by one Falak Beg Khan. By\nthe deed of dedication, Sheikh Din Mohammad and his descendants were\nappointed as Mutawallis. Since 1762, however, the building together\nwith the court-yard, well and adjacent land, was in the occupation and\npossession of the Sikhs. The land adjacent to the mosque became the\nsite of a Sikh shrine. At the time of the annexation by the British in\n1849, the Sikhs were in possession of both the mosque and the adjacent\nlands[.]</p>\n</blockquote>\n<p>By essentially treating a <a href=\"https://islamicmarkets.com/education/mutawalli\" rel=\"nofollow noreferrer\">Mutawalli</a> as the director of a non-profit corporation that owns the Mosque, rather than treating the Mosque itself as a charitable foundation that is itself a legal person, India's highest court did two things.</p>\n<p>First, it appeased the theological concern that within Islam and Islamic law, that all Muslims are in theory a common people under the same god and undivided by sect:</p>\n<blockquote>\n<p>A Mosque does not belong to any particular sect; for once it is\nbuilt and consecrated, any reservation for people of a particular\nlocality or sect is void, and persons not belonging to that locality\nor sect are entitled to worship in it, whether or not any particular\nsect had contributed towards the site or the building of the Mosque\nand had been saying their prayers in it and every person who believes\nin the unity of God and the mission of Mahammad as a prophet is a\nMussalman, to whatever sect he may belong, and that the Shias satisfy\nthe test; and that there is no such thing as a Sunni or a Shia Mosque\nthough the majority of the worshippers at any particular Mosque may\nbelong to one or other sect either generally or at various times”</p>\n</blockquote>\n<p><em>See Mahmood Hussain Vs. State Of UP</em> 2018-10 ADJ 249; 2018-128 All LR 71 citing A. Ghosh, "Law of Endowments (Hindu and Mohammedan)".</p>\n<p>Second, and more importantly, the courts of India changed course in the face of a <em>de facto</em> organizational structure for Mosques which is almost identical to the organizational structure of Hindu temples, because it made it easier to resolve disputes between an Islamic sect with long time <em>de facto</em> control of the Mosque and the Islamic sect that founded the mosque. Its refusal to treat the Mosque itself as a legal person allowed it to resolve the dispute between two Islamic sects with a claim to the Mosque under the secular property law principle of adverse possession that also applies to ordinary privately owned land.</p>\n<p>The court knew in making this ruling that disputes between members of a sect that founded a mosque and a sect that currently controls a mosque is a problem that is likely to recur going forward. The method of resolution that its ruling on legal personhood status for Mosques allows (which favors the <em>de facto</em> status quo) does so in a way that allowed the courts to extricate themselves from the underlying dispute over which Islamic sect is more worthy to control the building dedicated as a Mosque. It also does so without doing much to upset the status quo.</p>\n<p>In this analysis, the original non-profit entity established by the founder under the control of a succession of members of the family entrusted with the mosque originally still exists, but it has lost control of the building itself that it was founded to manage by adverse possession. A court in India exprssed this position by stating that:</p>\n<blockquote>\n<p>A gift can be made to a madrasah in like manner as to a masjid. The\nright of suit by the Mutawali or other manager or by any person\nentitled to a benefit (whether individually or as a member of the\npublic or merely in common with certain other persons) seems hitherto\nto have been found sufficient for the purpose of maintaining Mahomedan\nendowments. At best the institution is but a caput mortum, and some\nhuman agency is always required to take delivery of property and to\napply it to the intended purposes. Their Lordships, with all respect\nto the High Court of Lahore, must not be taken as deciding that a\n‘juristic personality’ may be extended for any purpose to Muslim\ninstitutions generally or to mosques in particular.</p>\n</blockquote>\n<p><em>See Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar</em>, AIR 1940 PC 116.</p>\n<h3>Follow Up Questions</h3>\n<blockquote>\n<p>Does this mean that if a significant amount of people associate with\nsomething it can gain the status of a legal person?</p>\n</blockquote>\n<p>This means that if property is dedicated to a non-Abrahamic religious purpose in India, that the management of that property is handled as if the Idol or religious figure is the name of a charitable foundation managed by its sebait for the benefit of the worships who use the temple, all of which is well defined within the context of Hinduism and other South Asian religions.</p>\n<blockquote>\n<p>By this logic, can say fictional characters get the status of a legal\nperson as well?</p>\n</blockquote>\n<p>Generally not, as people generally don't dedicate property to the worship of a fictional character. But, one could imagine, for example, someone dedicating a "Jedi Temple" and establishing a means of selecting a sebait to manage it being treated as a legal person in India, which is to say, that it is treated as basically a bare bones charitable foundation.</p>\n<blockquote>\n<p>Would it effect copyright law in any way?</p>\n</blockquote>\n<p>If a work were prepare as a "work for hire" for the charitable foundation named after a Hindu Idol or religious figure, that legal person could have the same rights in the work prepared in that way that a corporation which commissioned the same work could.</p>\n<h3>Afterword</h3>\n<p>It is worth observing that this decision of the English Privy Council reflects the general tendency of England as a colonial power, to care little about consistency between how issues are resolved from one colony to the other, or in this case, between one religious faith and another, instead focusing on the practical implications of their decisions on a case by case basis.</p>\n<p>It is also worth noting that while legal personhood is a concept that many people find troubling, despite the fact that, in practice, it is a good practical solution and no big deal.</p>\n<p>Legal personhood is simply the way that the law fixes responsibility for the conduct on a collective activity that may outlive someone originally associated with that activity, allows the people associated with that collective activity a mechanism to legally vindicate harms to the enterprise that might otherwise be hard to localize to any one natural person that benefits from that activity, and allocates authority over the property dedicated to that collective activity.</p>\n<p>Contrary to conventional wisdom, recognizing a legal personality usually makes it easier to sue when the actions of a collective activity cause harm, and of course, just because a legal person can participate in economic activity, that doesn't mean that a legal person can vote or be incarcerated in prison, or engage in other conduct reserved exclusively for natural persons.</p>\n",
"score": 2
}
] |
[
"india",
"corporate-law",
"religion",
"legal-concepts"
] |
How was the court in Abingdon RDC v O'Gorman (1968 EWCA Civ) aware of Thornton v Cruther & ors (1769)?
| 9 |
https://law.stackexchange.com/questions/90295/how-was-the-court-in-abingdon-rdc-v-ogorman-1968-ewca-civ-aware-of-thornton-v
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<p>At s23, the court cites Chief Justice Wilmot's decision in the 1769 case Thornton v Cruther & others, which it mentions is "unreported."</p>
<p>So how did the court become familiar with the case, much less the content of its reasoning?</p>
| 90,295 |
[
{
"answer_id": 90298,
"body": "<p>The <a href=\"https://en.wikipedia.org/wiki/Law_Reports\" rel=\"noreferrer\">Law Reports</a> at <em>Abingdon Rural District Council v. O'Gorman</em> [1968] 2 QB 811, 820 read as follows:</p>\n<blockquote>\n<p>[T]he judges held that in order to "impound or otherwise secure" the distress on the premises the landlord had to move the goods into a fit and convenient place on the premises … If there was no fit and convenient place on the premises, the landlord had to remove the goods out of the house. It was so held in 1769 by Wilmot C.J. in <em>Thornton v. Cruther</em>¹ and in 1774 by Lord Mansfield in <em>Washborn v. Black</em>,² and accepted in 1846 by Parke C.B. in <em>Woods v. Durrant</em>,³ and by Pollock C.B. in <em>Smith v. Ashforth</em>.⁴</p>\n<p>¹ (1769) Unreported (mentioned by Lord Mansfield in <em>Washborn v. Black</em> (1774) 11 East 405, n. (a)).</p>\n</blockquote>\n<p>The reference to <a href=\"https://en.wikipedia.org/wiki/Sir_Edward_East,_1st_Baronet\" rel=\"noreferrer\">East</a> is available at the Internet Archive at <a href=\"https://archive.org/details/kingscases11greaiala/page/405/mode/1up\" rel=\"noreferrer\">Reports of cases argued and determined in the Court of King's Bench, vol. xi</a> (1805-18), 405:</p>\n<blockquote>\n<p>Sittings at <em>Westminster</em> after <em>Michaelmas</em>, 1774. <em>Buller</em> J.'s MS. … Mr. <em>Dunning</em> insisted that he was a trespasser; for he ought either to have put the goods all into one room, and kept possession of that only, or to have removed the goods out of the house. And he cited a case of <em>Thornton v. Cruther and Others</em>, C.B. <em>Mich</em>. 9 <em>G</em>. 3. before Lord Chief Justice <em>Wilmot</em>, where it was so holden.—Lord <em>Mansfield</em> C.J. said that the strict law was so …</p>\n</blockquote>\n<p>The report draws on a manuscript of <a href=\"https://en.wikipedia.org/wiki/Sir_Francis_Buller,_1st_Baronet\" rel=\"noreferrer\">Buller J</a>, who became a judge of the Court of King's Bench in 1778, describing a hearing before <a href=\"https://en.wikipedia.org/wiki/William_Murray,_1st_Earl_of_Mansfield\" rel=\"noreferrer\">Mansfield CJ</a> in 1774. Perhaps Buller was present as counsel in that or another case, and making notes for his own future reference. Counsel in the hearing before Mansfield CJ cited an unreported decision of <a href=\"https://en.wikipedia.org/wiki/John_Eardley_Wilmot\" rel=\"noreferrer\">Wilmot CJ</a> on the <a href=\"https://en.wikipedia.org/wiki/Court_of_Common_Pleas_(England)\" rel=\"noreferrer\">Common Bench</a>, <a href=\"https://en.wikipedia.org/wiki/Legal_year\" rel=\"noreferrer\">Michaelmas term</a>, in the ninth year of the reign of <a href=\"https://en.wikipedia.org/wiki/George_III\" rel=\"noreferrer\">George III</a> (1769). Mansfield CJ accepted it as an accurate statement of the law.</p>\n<p>It is probably unknown whether Buller or East checked the citation against the records of the Court of Common Pleas available to them in the late 18th and early 19th century, such as the <a href=\"https://discovery.nationalarchives.gov.uk/details/r/C321335\" rel=\"noreferrer\">plea rolls</a>. However, in this era, historical court records typically did not include judge's reasons for decision, which were announced orally in court. These reasons could be noted down by barristers, referred to in subsequent cases if the barrister was considered trustworthy, and published by the authors of the <a href=\"https://en.wikipedia.org/wiki/Nominate_reports\" rel=\"noreferrer\">nominate reports</a> for wider legal education.</p>\n",
"score": 13
}
] |
[
"common-law",
"legal-history",
"precedent"
] |
Cancellation vs Avoidance of a contract
| 3 |
https://law.stackexchange.com/questions/90265/cancellation-vs-avoidance-of-a-contract
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CC BY-SA 4.0
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<p>Hey I was reading a International Commercial Sale of Goods Contract and I saw this provision:</p>
<blockquote>
<ol start="12">
<li>Effects of avoidance in general</li>
</ol>
<p>12.1 Avoidance of this contract releases both parties from their obligation to effect and to receive future performance, subject to any damages that may be due.</p>
<p>12.2 Avoidance of this contract does not preclude a claim for damages for non-performance.</p>
<p>12.3 Avoidance of this contract does not affect any provision in this contract for the settlement of disputes or any other term of this contract that is to operate even after avoidance."</p>
</blockquote>
<p>Why did the contract writer use avoidance here instead of an easier term "Cancellation" ?</p>
| 90,265 |
[
{
"answer_id": 90283,
"body": "<p>The term avoidance, as opposed to cancellation, is an implicit reference to <a href=\"https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09951_e_ebook.pdf\" rel=\"nofollow noreferrer\">Articles 81-84</a> of the Convention on the International Sale of Goods (CISG), which uses the term "avoidance" rather than "cancellation." This multilateral treaty language is referenced because the CISG is the governing law for most International Commercial Sale of Goods Contracts.</p>\n<p>Why does the CISG itself use of the term "avoidance" rather than the term "cancellation", which is more familiar and idiomatic in American legal English?</p>\n<p>Probably because the term "avoidance" produced the most understandable and consistent translations into the multiple languages in which equally authoritative version of the CISG are drafted.</p>\n",
"score": 4
},
{
"answer_id": 90269,
"body": "<blockquote>\n<p>Why did the contract writer use avoidance here instead of an easier term "Cancellation" ?</p>\n</blockquote>\n<p>The <a href=\"http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf\" rel=\"nofollow noreferrer\">Black's Law Dictionary</a> defines <em>avoidance</em> as <em>cancelling</em>. These terms are to be treated as synonyms unless the contract defines them in a way that establishes a distinction (and for the purpose of outlining the respective ramifications).</p>\n",
"score": 0
}
] |
[
"contract-law",
"international",
"breach-of-contract",
"sale-of-goods"
] |
Who do I contact regarding DA not charging sexual assault offender
| -1 |
https://law.stackexchange.com/questions/90289/who-do-i-contact-regarding-da-not-charging-sexual-assault-offender
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CC BY-SA 4.0
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<p>I was sexually assaulted which injured hip and psoas muscle, told DHHS bc im and was disabled & offender was DHHS CWS , filed police report 5-29-21 a year later Salem crime survivors a lady named Shawna called to inform "DAnot enough evidence " Shocked I began calling, tweeting & podcasts DA Mckintok speaks to me & informed me deputy ritz did the "investigation " I spoke to ritz 'why didn't you " all he said is "ok " 5x I ask why he said I want to argue, no I want justice, he then said "I recorded our interview " I said'push play' to no avail so again public appeal via calls tweets podcast so then ritz "redo" then another year no words so call DA again no charge</p>
| 90,289 |
[
{
"answer_id": 90290,
"body": "<p>A district attorney has discretion to decide whether to prosecute.\nA district attorney may be appointed by e.g. a county board of commissioners, or they may be elected. The electorate has the exclusive power to chastise DA, but voting him out of office, so there is little to be done other than write letters to the editor. An appointed DA has some superior, so you can complain to that superior. There is no way to legally force a DA to prosecute if they do not believe that there is enough evidence to get a conviction.</p>\n",
"score": 5
}
] |
[
"sexual-assault",
"disabilities",
"police-power"
] |
Do all legal persons have human rights?
| 2 |
https://law.stackexchange.com/questions/90285/do-all-legal-persons-have-human-rights
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CC BY-SA 4.0
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<p>For example, a corporate legal person can be proceeded against with criminal charges. Instinctively, one would be inclined to apply such "human" rights as that to a fair trial in protecting any defendant being proceeded against in a criminal context. But must the bar be quite as high for artificial legal persons as it is for natural ones?</p>
<p>And can non-human persons enjoy, and must they be afforded, "<em>human</em> rights"?</p>
| 90,285 |
[
{
"answer_id": 90287,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>It depends on the right. See <em>Quebec (Attorney General) v. 9147-0732 Québec inc.</em>, <a href=\"https://canlii.ca/t/jbf0p\" rel=\"noreferrer\">2020 SCC 32</a>:</p>\n<blockquote>\n<p>To claim protection under the Charter, a corporation ⸺ indeed, any claimant ⸺ must establish that "it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision."</p>\n</blockquote>\n<p>Regarding section 12 (right to be free from cruel and unusual treatment or punishment):</p>\n<blockquote>\n<p>the text “cruel and unusual” denotes protection that “only human beings can enjoy”</p>\n</blockquote>\n<p>Regarding section 7 (right not to be deprived of life, liberty, or security of the person other than in accordance with principles of fundamental justice):</p>\n<blockquote>\n<p>A plain, common sense reading of the phrase “Everyone has the right to life, liberty and security of the person” serves to underline the human element involved; only human beings can enjoy these rights.</p>\n</blockquote>\n<p>But, regarding section 8 (right to be free from unreasonable search or seizure):</p>\n<blockquote>\n<p>the Court accepted, without discussion or explanation, that the s. 8 right to be secure against unreasonable search or seizure could apply to corporations.</p>\n</blockquote>\n<p>And section 11(b):</p>\n<blockquote>\n<p>the Court extended the s. 11(b) right to be tried within a reasonable time to corporations on the basis that any accused, corporate or human, has, as Stevenson J. said, “a legitimate interest in being tried within a reasonable time”</p>\n</blockquote>\n",
"score": 5
}
] |
[
"england-and-wales",
"european-union",
"human-rights",
"any-jurisdiction",
"european-court-of-human-rights"
] |
Is one allowed to get someone's genetic information and use it without explicit permission?
| 2 |
https://law.stackexchange.com/questions/90261/is-one-allowed-to-get-someones-genetic-information-and-use-it-without-explicit
|
CC BY-SA 4.0
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<p>Inspired by the movie <a href="https://en.wikipedia.org/wiki/Gattaca" rel="nofollow noreferrer">Gattaca</a>, and how sites like Ancestory.com actively help find criminals who haven't submitted their DNA simply by using relatives who <strong>have</strong> willingly submitted their DNA.</p>
<p>Say that Bob the biochemist obtains (without explicit permission) a DNA sample from David (either a piece of hair that fell off, or some stray skin cells, or a used cup that David threw away, etc.). Is Bob allowed to use David's DNA? Some examples of how David's DNA could be used:</p>
<ol>
<li>Finding out that David is the true father of Bob's child</li>
<li>Finding out that David has increased risk of many diseases, and telling David's girlfriend/employer/health insurance company about this</li>
<li>Finding out that David's DNA is a match for DNA at a crime scene, and reporting that to the police.</li>
</ol>
<p>On one hand, it seems like a tremendous breech of privacy. But on the other hand, it seems as "natural" as announcing someone's apparent age to the world. Both are "surface level" things that anyone can have access to so long as David isn't shut up inside a bunker. I'm not sure what the official answer is.</p>
<p>I'm obviously not a biologist or lawyer, so please consider answering the "spirit" of the question, instead of the "letter" of the question, in case I haven't gotten the reality of things exactly straight.</p>
| 90,261 |
[
{
"answer_id": 90282,
"body": "<p>In the United States, the Genetic Information Nondiscrimination Act (GINA) restricts employers and health insurers and employers from denying coverage, providing coverage under a higher premium or refusing to hire based on genetic information which indicates a genetic predisposition to developing a disease in the future. In the most recent amendment, Employers are permitted to collect genetic information of employees and dependant spouses for wellness programs provided that it is clear that the program is voluntary, the employee is not denied health care for non-participation, and adverse employee actions are not used to punish non-participation or coerce participation in such a program.</p>\n<p>Further, Health Insurance and providers may not sell a customer's genetic information without the consent of the customer, and may not request such consent as part of enrollment.</p>\n<p>In terms of evidence collection, Police must have a warrant to seek a genetic sample from a suspect unless consent of the suspect. Any genetic evidence collected without consent or a warrant subject to the same rules of evidence collection as any other evidence (i.e. must be plain view and collected from a space where no reasonable expectation of privacy is expected. If a cop offers you a soda or coffee while you're in interrogation, they can swab the cup for a sample when you throw it away.).</p>\n<p>A recent development in DNA evidence is that cops have sent samples to personal genomics companies such as Family Tree DNA to help identify unknown samples of suspects collected from crime scenes. Such companies offer customers the service of creating a family tree based on genetic samples submitted by the customer. While the suspect might not be in the database, a close familial link may be uncovered that could help identify a sibling, cousin, or other genetic familial relationship of the suspects and narrow the suspect lists. In one of the earliest examples, two nearly 20 year old rape cases were solved in 2019 when the suspects DNA was a 100% match to a sample submitted by the suspect's identical twin brother. While the brother was originally a suspect, additional detective work was needed to identify which of the twins was the perpetrator. That, narrowing down the suspect field to two people was a huge development in the cold case.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law",
"privacy",
"california",
"stalking"
] |
Why was US v. Miller not dismissed?
| 1 |
https://law.stackexchange.com/questions/90280/why-was-us-v-miller-not-dismissed
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CC BY-SA 4.0
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<p>In US v. Miller, the court found that the National Firearms Act of 1934 was Constitutional. The question I have is, why wasn't it dismissed considering that Miller died before the case was heard?</p>
<p>Wouldn't that make the case moot?</p>
| 90,280 |
[
{
"answer_id": 90281,
"body": "<h2>Miller was only one of the defendants</h2>\n<p>Two people were charged with the crime, Miller and Laycock. Miller was dead, Laycock was still alive. Following the Supreme Court <a href=\"https://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf\" rel=\"nofollow noreferrer\">decision</a>:</p>\n<blockquote>\n<p>On January 8, 1940, Layton pleaded guilty to the reinstated NFA charge and Ragon sentenced him to five years probation.</p>\n</blockquote>\n<p>So the case was not at all moot.</p>\n",
"score": 3
}
] |
[
"united-states",
"constitutional-law"
] |
Can courts override regulations?
| 1 |
https://law.stackexchange.com/questions/90255/can-courts-override-regulations
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CC BY-SA 4.0
|
<p>It is inconceivable that the courts of law could override statutes. The courts are bound by statutes, and only have leeway in interpreting them where they are vague.</p>
<p>But does the same apply to regulations?</p>
<p>Can the courts say something like "okay, this regulation has not been updated for long, it no longer reflects the modern realities, so we create this case law allowing to deviate from the regulation"?</p>
| 90,255 |
[
{
"answer_id": 90277,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p><strong>Invalidating Statutes</strong></p>\n<blockquote>\n<p>It is inconceivable that the courts of law could override statutes.\nThe courts are bound by statutes, and only have leeway in interpreting\nthem where they are vague.</p>\n</blockquote>\n<p>This overstates the situation, at least in U.S. law.</p>\n<p>Courts, of course, do sometimes override statutes.</p>\n<p>Courts invalidate statutes on the ground that they are unconstitutional (in the case of state legislation under the federal or state constitution, and in the case of local ordinances under the federal or state constitutions or under a local government's charter), and less frequently, on the ground that subsequent legislation or a new treaty has implicitly repealed or modified an old statute.</p>\n<p>A state law can be invalidated on the grounds that it conflicts with federal statutes or treaties and/or regulations, and a local law can be invalidated on the grounds that it conflicts with federal treaties, and/or federal or state statutes, and/or federal or state regulations.</p>\n<p>While one can argue over whether it is a matter of statutory interpretation or is an actual invalidation of a statute, a court can also make a determination that a statute is "spent" (for example, in the case of legislation authorizing something to be done that has already happened, such as spending money or allowing the executive branch to purchase real estate for some purpose), or has expired without further legislative action as legislation on the books already provided (this happens a lot in the case of tax provisions that have sunset terms in order to comply with Congressional budgetary rules).</p>\n<p>Courts can also interpret a statute in a manner that seemingly conflicts with the plain textual meaning of the statute, in order to avoid a finding of unconstitutionality, implicit repeal, or an absurd interpretation of the law viewed in context and as a whole.</p>\n<p><strong>Invalidating Regulatons</strong></p>\n<p>Courts can invalidate regulations on a variety of grounds including:</p>\n<p>(1) unconstitutionality on the merits,</p>\n<p>(2) unconstitutionality on the grounds that they represent excessive Congressional delegation of authority to the executive branch,</p>\n<p>(3) implicit repeal by later statutes or regulations, or by statutes or regulations of another higher level of government which has supremacy over the regulation in question,</p>\n<p>(4) procedurally improper adoption or repeal of regulations under the federal <a href=\"https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)\" rel=\"nofollow noreferrer\">Administrative Procedures Act</a> (or parallel state or local administrative procedures related to regulatory actions),</p>\n<p>(5) substantively improper adoption or repeal of regulations under the Administrative Procedures Act because the administrative record at the time of agency regulatory action does not adequately support the agency's regulatory action,</p>\n<p>(6) substantively improper content because the regulations are not a reasonable interpretation or implementation of a statute, or</p>\n<p>(7) substantively improper content because it exceeds the scope of regulatory authority authorized by the statute, i.e., that the regulation was an <em>ultra vires</em> act of the agency.</p>\n<p>The U.S. Supreme Court in just the last year, under its new 6-3 conservative majority, has also articulated a new basis for overturning regulations called the "<a href=\"https://www.nytimes.com/2023/03/06/us/politics/supreme-court-major-questions-doctrine.html#:%7E:text=The%20idea%20behind%20the%20major,of%20political%20or%20economic%20significance.\" rel=\"nofollow noreferrer\">major questions doctrine</a>". This doctrine is basically a hardening of the traditional non-delegation doctrine analysis in certain circumstances even when the legislation in question can plausibly be read to confer upon the executive branch the authority to issue a regulation of the kind adopted. As explained at this New York Times link:</p>\n<blockquote>\n<p>It has been only eight months since the Supreme Court first invoked\nthe “major questions doctrine” by name in a majority opinion, using it\nto limit the Environmental Protection Agency’s power to address\nclimate change. Last week, the court seemed poised to use it again, to\nkill the Biden administration’s plan to cancel more than $400 billion\nin student loans. . . .</p>\n<p>The idea behind the major questions doctrine is that Congress must\nspeak particularly clearly when it authorizes the executive branch to\ntake on matters of political or economic significance.</p>\n</blockquote>\n<p>As in the case of legislation, while one can argue over whether it is a matter of statutory interpretation or is an actual invalidation of a regulation, a court can also make a determination that the regulation is "spent", or has expired by its own terms.</p>\n<p>Courts can also interpret a regulation in a manner that seemingly conflicts with the plain textual meaning of the regulation, in order to avoid a finding of unconstitutionality, to avoid a conflict with the legislation authorizing the regulation, to avoid implicit repeal, or to prevent an absurd interpretation of the regulation viewed in context and as a whole.</p>\n<p>The bottom line is that there are indeed many grounds to invalidate a regulation, although not necessarily the one contemplated in the question.</p>\n<p>The courts can also determine that a formal or informal policy or practice of an agency amounts to a regulation and is subject to judicial review on the grounds set forth above, even though the agency itself has not framed that formal or informal policy or practice in terms of it being a regulation.</p>\n<p>The line between what constitutes a mere exercise of law enforcement or executive branch discretion by an agency on a basis that does not actually amount to a regulation, and what actually constitutes a regulation in cases where the agency does not follow the Administrative Procedure Act regulatory process, is often not clear cut.</p>\n<p>For example, while the I.R.S. provides as a matter of law that some of its statements on its website and in its taxpayer oriented publications and instructions have the legal force of a regulation, most other federal government agencies do not. But a court could rule that a statement on the webpage another government agency or in a publication of another government agency or an internal memorandum in some agency actually is a <em>de facto</em> regulation and is subject to judicial review on the same basis as a regulation.</p>\n<blockquote>\n<p>Can the courts say something like "okay, this regulation has not been\nupdated for long, it no longer reflects the modern realities, so we\ncreate this case law allowing to deviate from the regulation"?</p>\n</blockquote>\n<p>Not unless the modern reality is a change in legislation or constitutional case law affecting something in the substantive content of the regulation.</p>\n<p>For example, a court could invalidate a portion of a regulation defining marriage as only opposite sex marriages for purposes of some administrative program, even though the regulation has not been formally updated to reflect the fact that same sex marriages must now be recognized as a matter of constitutional law.</p>\n<p>But, while the principle of <em>stare decisis</em> allows a court to determine that old case law should no longer be given the effect that it once had in light of changing case law, legislation, and the real world context to which the old cases are applied, this usually cannot be done in the case of regulations.</p>\n<p>For example, the regulatory determination that marijuana is a Schedule I controlled substance, which includes a requirement that the regulator determine that marijuana has no legitimate medicinal purpose cannot be invalidated on the basis of a court determination that there are now legitimate medicinal purposes for marijuana, even though three-quarters of U.S. states have legalized marijuana for medical purposes.</p>\n<p>Instead, the past regulatory decision can only be revisited through an Administrative Procedure Act authorized process to amend the regulation in question.</p>\n<p>The closest the courts get to a determination of this kind about a regulation would be a determination that a regulation is implicitly "spent".</p>\n<p>For example, a regulation that implicitly assumes that some particular war that was pending when the regulation was adopted (e.g. World War II) is underway, even though it doesn't expressly state that the regulation only applies for the duration of that war, might be held by a court to be "spent."</p>\n",
"score": 2
},
{
"answer_id": 90256,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Regulations are products of executive action and can be reviewed for validity on a variety of grounds:</p>\n<blockquote>\n<p>Regulations are valid if they are passed by the Governor in Council, signed by the Governor General, and (generally) published in the Canada Gazette. Once that is done, they can only be challenged based on 1) unconstitutionality, or 2) vires: <em>Katz Group</em>; <em>GGPPA</em>. So long as the regulations are within the literal wording of the enabling statute and consistent with its general objectives, including any procedural preconditions that might be stipulated, they are not subject to challenge for reasonableness.</p>\n<p><em>Auer v Auer</em>, 2022 ABCA 375 <a href=\"https://canlii.ca/t/jt3d6#par81\" rel=\"nofollow noreferrer\">at para 81</a>.</p>\n</blockquote>\n<p>Absent such a defect, the regulation is valid and needs to be applied by administrative decision makers and courts.</p>\n<h3><em>Vires</em></h3>\n<p>"A successful challenge to the <a href=\"https://en.wikipedia.org/wiki/Ultra_vires\" rel=\"nofollow noreferrer\"><em>vires</em></a> of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate." <em>Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care)</em>, 2013 SCC 64 <a href=\"https://canlii.ca/t/g1z1v#par24\" rel=\"nofollow noreferrer\">at para 24</a>.</p>\n<h3><em>Charter</em> or other constitutional violations</h3>\n<p>See e.g. <em>Committee for the Commonwealth of Canada v. Canada</em>, <a href=\"https://canlii.ca/t/1fsnf\" rel=\"nofollow noreferrer\">[1991] 1 S.C.R. 139</a> (parts of airport concession operations regulations infringed on freedom of expression).</p>\n<h3>Procedural</h3>\n<p>The enabling statute might prescribe procedural requirements (notice, consultation, etc.). As a point of comparison, in the United States, most federal regulation-making has to comply with the <a href=\"https://en.wikipedia.org/wiki/Notice_of_proposed_rulemaking\" rel=\"nofollow noreferrer\">procedural requirements</a> of the <a href=\"https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)\" rel=\"nofollow noreferrer\">Administrative Procedure Act</a>. Failure to do so is a ground for setting aside the regulation.</p>\n",
"score": 1
},
{
"answer_id": 90276,
"body": "<p>In the U.S., this happens often due to the fact that the separation of powers means the branch of government that writes the laws is not responsible for the enforcement of the laws. In U.S. Jurisprudence, it's generally held that Federal Law supersedes State Law, which in turn supersedes local law (local laws may further supersede other local laws, but it gets really weird as you go into the layers of local government).</p>\n<p>Thus, if a state law conflicts with a federal law, then state law and all resulting regulations are thrown out since they must comply with a Federal Law. An example is a few years back when Arizona passed a law regarding the enforcement of illegal immigration when those who entered the state via an illegally crossing the Mexican border. The courts struck down these regulations because they found that immigration law was solely enforceable by the Federal Government, thus Arizona could not make or enforce these laws.</p>\n<p>Other times, regulatory agencies (which are almost always under the Executive Branch of government) may make a regulation under the justification of a law that authorizing them to make regulations in compliance of these laws, but the specific scope of the law does not in fact give them regulatory authority over this particular aspect of the topic. For example, the Buera of Alcohol, Tobacco, and Firearms is currently seeing the legality of a Trump Era "bump stock ban". At issue is that the law the ATF claims justifies the ban is ambiguous as to whether bump stocks are cover or excused or not even mentioned in the language of the law. If it's not covered, then the ATF is not allowed to regulate it. If the language is ambiguous, it's a whole lot more complicated because it's ambiguous at best and there are guidelines for specific types of ambiguities and who gets the favorable interpretation of the ambiguous (ATF argues that the ambiguities are administrative in nature, and as such, the regulatory agency gets to determine the meaning. The plaintiffs claim that the ambiguities are criminal enforcement in nature, and thus the interpretation goes to the defendants in any criminal action related to regulations from this law.).</p>\n<p>To say nothing of the fact that if the ambiguous wording is such that it's too vague, the courts can rule that it makes it uneforcable at all.</p>\n<p>At this point, it should go with out saying that in U.S. law, regulations are typically administrative rules created by the executive branch that allow relevant regulatory agencies to set guidelines and procedures for enforcement of laws created by the legislature. Often times the Legislature has to make laws on topics that they might have difficulty in understanding in the nuance... but the relevant regulatory agency is more likely to have people who know the more detailed talking points because it's their job to worry about this stuff. It's not uncommon for laws to authorize the enforcement agency to set the exact figures when dealing with the enforcement of the law.</p>\n<p>For example, if a law that will regulate CO2 emissions is passed, the Law might say that it is up to the Enviromental Protection Agency to determine the level of permissible CO2 emissions. Whatever the EPA says that number is, is a regulation backed by the aforementioned law. Any change to that level can be changed at any time so long as the law is still enforced and for any reason (either the new administration thinks the old one used a number that is overly permissive or overly burdensome OR there is an actual factual reason for a reduction or raising of the number.).</p>\n",
"score": 0
}
] |
[
"common-law",
"regulations",
"case-law"
] |
Do the UK TV licensing rules disregard innocent until proven guilty?
| 34 |
https://law.stackexchange.com/questions/53668/do-the-uk-tv-licensing-rules-disregard-innocent-until-proven-guilty
|
CC BY-SA 4.0
|
<p>I don't have a TV license, I use Netflix and Amazon Prime. In the UK you have to state that you don't have a TV license and sign a declaration to that effect every 2 years (unless you then get a license).</p>
<p>When signing my declaration there was a note stating that they may come round and check if I need a license, I would assume by coming into my house and looking at the back of my TV. If they did this they would find no antenna plugged in and then be on there way. However do they have the legal right to perform this check? Do I have to let them in, and if I don't, what is the consequence? It feels like the check is assuming I'm guilty and that I would have to prove my innocence - but that goes against one of the fundamental principles of our legal system.</p>
<p>My question is: does the TV licensing system operate under the innocent until proven guilty modus operandi and if not why not?</p>
| 53,668 |
[
{
"answer_id": 53674,
"body": "<h1>The system operates on "innocent until proven guilty"</h1>\n<p>If you watch or record live television or you download or watch programmes on BBC iPlayer (live, catch up, or on demand), you must have a TV licence.</p>\n<p>You do not have to let TV Licensing officers into your home unless they have a warrant, per <a href=\"https://www.legislation.gov.uk/ukpga/2003/21/section/366\" rel=\"noreferrer\">Section 366 of the Communications Act 2003</a>. They will check the TV and any other devices (such as a laptop, phone, etc.) that are capable of watching or recording live television as well as downloading or watching programmes on BBC iPlayer, and that will form part of the evidence in deciding whether to charge you with a criminal offence (<a href=\"https://www.legislation.gov.uk/ukpga/2003/21/section/363\" rel=\"noreferrer\">Section 363 of the Act</a>) or not.</p>\n<p>If charged with an offence, you would go before a magistrate court and plead your case like any other criminal matter. Therefore, the system still operates on "innocent until proven guilty" because you will not acquire a criminal record unless the court is satisfied, beyond reasonable doubt, that you committed the relevant offence.</p>\n",
"score": 39
},
{
"answer_id": 53694,
"body": "<p>Let's start with the OP's statement</p>\n<blockquote>\n<p>In the UK you have to state that you don't have a TV license and sign a declaration to that effect every 2 years (unless you then get a license).</p>\n</blockquote>\n<p>You do not have to state this at all. You are under NO legal obligation to reply to TVLA's letters. All that will happen is they will keep sending them to you.</p>\n<p>You do not have to let them in. You don't have to answer the door. You can open the door and say "go away". Under NO circumstances sign anything, especially not the "confirmation of visit" form; too often this is folded in half, and what you are really signing - hidden by the fold - is an admission that you have been watching TV without a licence. There is also anecdotal evidence of individuals signing one form and their signature appearing on an admission document.</p>\n<p>You do NOT need a licence if you own a device capable of watching/recording live television. You only need a licence if you a) watch LIVE television as it is broadcast, and/or b) use BBC iPlayer to view ANY BBC content, even on catch-up.</p>\n<p>You do not need a licence to watch 4more, ITVHu, Prime, Netflix, etc... unless it is broadcast live.</p>\n<ol start=\"2\">\n<li><p>TVLA can only enter with a warrant. If this happens, film their visit. They can look at whatever they want. If you do not watch broadcast TV, ensure your devices are not plugged into an antenna. If they ask you to pick up the antenna lead, do NOT do this. Do not plug it in to "see if it reaches". They are looking for evidence.</p>\n</li>\n<li><p>If you are charged, it will go in front of a magistrate. However, if you have admitted to watching TV without a licence (ie signed something), then you are pretty much up the creek.</p>\n</li>\n<li><p>Remember that TVLA staff are paid on a commission basis... think about that, they are incentivised to bring cases to court.</p>\n</li>\n</ol>\n",
"score": 30
},
{
"answer_id": 53697,
"body": "<p>In legal terms, the "innocent until proven guilty" principle still holds. However, the dirty tactics utilised by licensing officers <strong>try</strong> all sorts of underhand tricks to disregard "innocent until proven guilty". The general advice is that you should not engage with such licensing officers in any way, unless they actually have a search warrant (very rare). In particular, if a licensing officer knocks on your door or attempts to gain entry to your property, you should not let them in, and <strong>you should not sign any forms</strong>.</p>\n<p>A more comprehensive guide (including details of some of the underhand tricks licensing officers may try on you) can be found at:</p>\n<p><a href=\"https://tv-licensing.blogspot.com/p/quick-guide.html\" rel=\"noreferrer\">https://tv-licensing.blogspot.com/p/quick-guide.html</a></p>\n<p>Questions 11 & 12 in that guide are particularly relevant here:</p>\n<blockquote>\n<h1>11. What happens if I inform TV Licensing that my property doesn't need a TV licence?</h1>\n<p>It is pointless telling TV Licensing that your\nproperty doesn't need a TV licence, as it won't believe you. TV\nLicensing will acknowledge your claim that no TV licence is needed,\nbut will say that it might send a goon around to check anyway. The\nthreatograms will temporarily stop, but experience tells us that TV\nLicensing will be hassling you again within the space of a year.</p>\n<p>A legally-licence-free person is under no obligation at all to TV\nLicensing. They should not feel coerced into doing TV Licensing's work\nfor it. Do not submit to TV Licensing's sordid, legally baseless\nsuspicions.</p>\n<h1>12. What should I do if a TV Licensing goon visits my property?</h1>\n<p>TV Licensing goons do not have the automatic right of access to any\nproperty. Our advice to the legally-licence-free is to immediately\nidentify any unexpected callers to their property and close the door\non those from TV Licensing. Remember, the legally-licence-free are\nunder no obligation at all to TV Licensing.</p>\n<p>Do not make the mistake of engaging with a TV Licensing goon (on\nunidentified stranger) on the doorstep. TV Licensing goons earn\ncommission by selling TV licences and nabbing evaders, which can skew\ntheir interpretation of the truth.</p>\n<p>Dishonest TV Licensing goons are prone to twisting innocent comments\nlike "Yes, I have a TV set that I only use for DVDs" into\nincriminating comments like "The occupier admitted watching TV". If a\nTV Licensing goon calls, by far the safest option is to say nothing\nand close the door.</p>\n<p>If you have a camera or smartphone we recommend filming any TV\nLicensing goon that visits your property. This creates an accurate\nrecord of the encounter in case the goon runs away and fabricates a\ndifferent story. Remember that TV Licensing goons should never be\ntrusted.</p>\n</blockquote>\n",
"score": 11
},
{
"answer_id": 53706,
"body": "<p>It is currently a criminal offence, and as such the same procedures (including "innocent until proved guilty") apply as with any other criminal offence.</p>\n<p>If entry to premises is required to obtain evidence, the court can issue a warrant.</p>\n<p>However the reality of the situation is that almost all the defendants who are summoned to court (about 120,000 per year) plead guilty without attending court, and the average length of the court proceedings is <em>less than two minutes.</em></p>\n<p>It might be more worrying that the UK government is considering decriminalizing this, which would result in a lower standard of proof and poorer appeal procedures, and also move the debt collection process from court officials to civil bailiffs who may be less concerned about "following procedures" than earning profits from successful debt collection.</p>\n",
"score": 5
},
{
"answer_id": 53741,
"body": "<h2>Officers get to be tricky</h2>\n<p>The problem here is you're expecting the TV enforcement officers to deal fairly and not pull dirty tricks or be manipulative.</p>\n<p>There's no legal obligation for them to do that, just as there's no legal obligation for police detectives to not trick you.</p>\n<p>There are limits to what you can do, but this is where we get into the difference between law theory and law practice. For instance the folded-over document that you sign without realizing what it says. On one hand, the judge sees a deadlocked squabble over what was done, between a suspect and an enforcement officer. On the other hand the judge sees a document plainly signed by the defendant. <strong>The document will tend to prevail.</strong> The entire basis of contract law is that a signed document has weight, and it follows that everyone who signs a document has a duty to know what they're signing. It wouldn't do for every signer who has remorse to simply claim to be misled! So the "tricked" argument is unlikely to go far.</p>\n<h2>Know your rights.</h2>\n<p>When an officer asks for permission to search your home, that is <em>because they <a href=\"https://law.stackexchange.com/a/28836/14193\">do not have the right</a></em> to search. <strong>When police have a right to search, <em>they don't ask</em></strong>. So the very fact they are asking means you can say no. <em>And should:</em> It does not benefit you in any way whatsoever to allow the search, it can <em>only</em> go against you.</p>\n<p>They may say you can't refuse, and then ask again for permission; <em>still</em> say you do not consent. If they had a right, they wouldn't be asking.</p>\n<p>Likewise you do not have any obligation to answer any question, except in certain rare instances. Again, cooperation does nothing for you and can only possibly hurt you.</p>\n<p>When an officer is manipulative, to try to make you "FEEL" a particular way, that is quite on purpose, for the sole purpose of getting you to do something that is not in your own best interest. Of course, the emotional impulse to act is very high; that's the whole point of manipulation. That is why you must be absolutely scrupulous when dealing with authorities to follow the <a href=\"https://www.theukrules.co.uk/rules/legal/police/dealing-with-police.html\" rel=\"nofollow noreferrer\">"rules of engagement"</a> as advised by civil rights groups or by your lawyer.</p>\n<p>Part of the manipulation is to tempt you into saying something "smart" - you know that urge - but again that cannot help you and can only hurt.</p>\n<p>Protecting yourself from such manipulation is exactly why you engage a lawyer for a serious matter. For TV goons, just don't speak to them at all.</p>\n",
"score": 4
},
{
"answer_id": 80927,
"body": "<p>@Paul Smith, Martin Lewis says you are bang wrong</p>\n<p><a href=\"https://www.chroniclelive.co.uk/news/north-east-news/martin-lewis-tv-licence-expert-16300381\" rel=\"nofollow noreferrer\">https://www.chroniclelive.co.uk/news/north-east-news/martin-lewis-tv-licence-expert-16300381</a></p>\n",
"score": 0
}
] |
[
"united-kingdom",
"licensing"
] |
Can I have a vehicle towed that’s parked in the fire lane by my apartment?
| 1 |
https://law.stackexchange.com/questions/90267/can-i-have-a-vehicle-towed-that-s-parked-in-the-fire-lane-by-my-apartment
|
CC BY-SA 4.0
|
<p>The issue is as the question states. I rent an apartment with far too few spots for the amount of people in my building. This is remedied by there being excess spots in front of other apartment buildings within the same property (same company, same apartments, different buildings). However, people are just too lazy to walk the extra 100 feet so rather than parking in one of the open spots elsewhere, they park in the fire lane in front of the building. The lanes are very narrow to drive in as it is so I’ve been trapped and unable to leave for work some days because those cars block me off. I call the management office, they don’t open until 8 but I have to leave for work at 6 to get there. So nothing gets done in time. By the time management returns my call at 9, the vehicles are gone. I take pictures and send emails. By the time management sees the email, the cars gone and they say they’ll “give them a warning” but nothing changes.</p>
<p>Can I have cars towed that are illegally parked in the fire lane overnight in front of my apartment? I’m tired of relying on management who does nothing and having to miss or be incredibly late to work.</p>
| 90,267 |
[
{
"answer_id": 90270,
"body": "<p>Had a similar situation in a home I lived in. We lived on the street closest to a High School's footbal stadium and the inadequate parking would cause fans to park in a manner that took a street that could handle bi-direction traffic to an unsigned one-way road. The school did make frequent announcements that fans parked there could be towed (it helped that I was one of many alums that lived there). The police informed me that unless there was some signage, they actually couldn't do anything. So you have the benefit of signage that says people cannot park there.</p>\n<p>I would recommend calling the fire marshal. In Washington State (I assume your not in DC) the Fire Marshal is a division of the Washington State Patrol, the state police organization. Giving them a call in the evening when the parking is observably bad, will likely get the ball rolling. I would not expect towing, but I would expect to see tickets under offending vehicles if they come out.</p>\n<p>If they fail too, I would start taking pictures of offending vehicles and present it to the local branch of WSP. I would minimize the inconvenience to your commute and the safety hazard of blocking space allocated for use by Emergency Service Vehicles. Try to get a name of someone who you can personally work with to assist you in the manner and who you can contact to report further issues. If they won't provide, ask if there is a way you can submit complaints to them.</p>\n<p>I would, after contacting the WSP, notify your building's staff in person and through e-mail, that you have made them aware of the situation and that they have taken no action on previous attempts and that you have gone to the WSP over this matter. This serves two purposes, first you are notifying the building managment of a potential violation of law (the fire code is a law and is there because it's easier to fight deadly fires by removing hazards that make fires deadly in the first place. If a fire truck is blocked from the fire lanes, the fire fighters are going to have to deal with that before they can get to doing their real job.). The other benefit is to create a paper trail, which you can present to the WSP to show the building is compliant in fire code violations despite being made aware of the problem. Your building is likely not doing anything because there's no documentation that they are aware of the problem, so they can claim they didn't know anything about this if it goes to court.</p>\n<p>Finally, I would recommend you seek an attorney that specializes in teneat or real estate matters and ask for a consultation. You do not have to employ their services, but most law offices will have a "client intake" process where you can explain your case and they can offer you some advice or other avenues. Even if you don't intend to sue your landlord(s), and even if you are reporting a crime to police, having a lawyer when dealing with the police and landlords can only help as they will be able to better advise you so you can do this safely without exposing yourself to civil or criminal liability. You can bet they have lawyers that will be more than willing to screw you for their clients. Also, even if you have no intention to go to court over this, they do not need to know that.</p>\n",
"score": 1
},
{
"answer_id": 90271,
"body": "<p>Depending on local laws, the property managers may have the discretion to call for towing themselves, as it is private property, but they obviously don't want to cause friction with their tenants. You could call a towing company directly, but depending on local laws, they will probably defer to the police or sheriff to ticket first before they tow. You could call the fire department, and depending on the size of the city and fire department, they may take a look or tell you to call 911.</p>\n<p>You don't mention if you live in a city (with a police department) or a county (with a sheriff's department), but the simplest thing to do is bypass the management and call 911 (or find the local police or sheriff non-emergency number). Tell the dispatcher there are multiple cars parked in a fire lane and are there every day. Try calling at 5am or so to give them time to respond. Or, call the night before so the incident gets logged for the next shift. You may or may not be required to give your name, but dispatchers may not prioritize reports by callers who wish to remain anonymous. Law enforcement should respond; it may depend on the size of your city, how busy they are and how they treat non-emergency calls. Law enforcement should ticket the cars and possibly call for a tow at the same time.</p>\n",
"score": 1
}
] |
[
"washington",
"parking",
"towing"
] |
Official source for Data Export legislation (UK)
| 1 |
https://law.stackexchange.com/questions/90228/official-source-for-data-export-legislation-uk
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CC BY-SA 4.0
|
<p>I need to find an official source for "Data Export" legislation that applies within the UK, I have searched the .GOV websites and found various pages that refer to physical item (military and dual-use) legislation but not to Digital data. I have also found references to "Data sovereignty" and "Data Residency" but these don't appear to be UK specific.</p>
<p><strong>Scenario:</strong></p>
<p><strong>Company A</strong> (UK) needs to store potentially sensitive (possibly military) data which may include communications, parts diagrams, personal data etc in an online platform that can be accessed by the sales team within the UK only.</p>
<p><strong>Company B</strong> (USA) offers such a platform, but may be hosting the data in datacentres in the USA, Ireland etc.</p>
<p>I need to find out what UK legislation covers storage location and transmission to other countries.</p>
| 90,228 |
[
{
"answer_id": 90248,
"body": "<h2>It might be an offence</h2>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/1989/6/section/8\" rel=\"nofollow noreferrer\">Section 8</a> makes it an offence for a Crown servant or government contractor to fail to protect information covered by the Act.</p>\n<p>Were you to use this service knowing that the US government has a right to inspect the data on request, you might be considered to have failed to protect it.</p>\n",
"score": 2
},
{
"answer_id": 90230,
"body": "<p>To the best of my knowledge there is no UK law covering the export of data relating to things like parts diagrams. There are controls on personal data, which are based on the EU GDPR and implemented by the <a href=\"https://www.legislation.gov.uk/ukpga/2018/12/contents/enacted\" rel=\"nofollow noreferrer\">Data Protection Act 2018</a>, specifically Part 3 Chapter 5.</p>\n",
"score": 1
}
] |
[
"data-protection",
"data-storage",
"data"
] |
In CrPc (India) can a court discharge or dismiss a complaint against the accused even if a prima facie case is made out against them?
| 2 |
https://law.stackexchange.com/questions/90233/in-crpc-india-can-a-court-discharge-or-dismiss-a-complaint-against-the-accused
|
CC BY-SA 4.0
|
<p>Or is it generally impossible for this to occur and can grounds for not proceeding against an accused be based on anything other than evidence? How do magistrates prevent First Information Reports that are in bad faith?
CrPc = code of criminal procedure</p>
| 90,233 |
[
{
"answer_id": 90262,
"body": "<p>First Information Reports that are "in bad faith" will be (should be) tested in court by the production of witnesses and evidence.</p>\n<p>Opportunities to discharge depend on the mode of trial i.e. whether it is a "summons" or "warrant" trial.</p>\n<p>For a Warrant's Trial the court can discharge (in addition to the <em>prima facie</em> provisions at <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=256\" rel=\"nofollow noreferrer\">CrPc 227</a> referred to by <a href=\"https://law.stackexchange.com/a/90220/35069\">this related answer</a>) under:</p>\n<blockquote>\n<ul>\n<li><a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=268\" rel=\"nofollow noreferrer\">CrPc 239</a>:</li>\n</ul>\n<p>If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.</p>\n</blockquote>\n<p>Or under:</p>\n<blockquote>\n<ul>\n<li><a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=274\" rel=\"nofollow noreferrer\">CrPc 245</a>:</li>\n</ul>\n<p>(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.</p>\n<p>(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.</p>\n<p>[with a West Bengal ammendment]</p>\n</blockquote>\n<p>But there are no provisions to discharge in a Summons' Trial see <a href=\"https://www.mondaq.com/india/court-procedure/579124/to-discharge-or-not-to-discharge-that-is-the-question\" rel=\"nofollow noreferrer\">this detailed article</a> (<em>by Anirban Bhattacharya and Bharat Chugh</em>)</p>\n<blockquote>\n<p>The recent order of the Supreme Court in <a href=\"https://indiankanoon.org/doc/187610193/\" rel=\"nofollow noreferrer\">Amit Sibal</a>, appears to be the much needed course correction and seems to suggest that the trial court has no power to drop proceedings / discharge in a Summons Trial. This also appears to be in sync with the settled judicial view and also the scheme of CrPC, wherein separate and distinct procedures have been laid down for Warrants, as opposed to Summons Cases (or those cases triable summarily for that matter).</p>\n</blockquote>\n",
"score": 1
}
] |
[
"criminal-law",
"india",
"evidence",
"rules-of-court"
] |
If a restaurant is booked and upon arrival it is communicated that the kitchen is closed, are potential damages entitled to be claimed?
| 0 |
https://law.stackexchange.com/questions/89350/if-a-restaurant-is-booked-and-upon-arrival-it-is-communicated-that-the-kitchen-i
|
CC BY-SA 4.0
|
<p>It's a hypothetical question:</p>
<p>Let's say you booked a table via an online reservation system (from the restaurant's website) for a romantic dinner with your partner from 7:30-9 PM. The online reservation form has fields for "time", "name", "phone number", and "message/special requests".</p>
<p>You leave a message under the messages section that you are going to arrive around 8-8:15 PM. The reservation is getting confirmed a few minutes after the reservation.</p>
<p>You are arriving at the restaurant at exactly 8 PM and the cashier says: "Oh, sorry, we closed the kitchen! We can't serve you today! Only take away!".</p>
<p>Do you have any right here to complain?</p>
<p>BTW, even though the case was in Sweden, I believe my question was a bit more general.</p>
| 89,350 |
[
{
"answer_id": 89360,
"body": "<p>In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page).</p>\n<p>In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires.</p>\n",
"score": 6
},
{
"answer_id": 89353,
"body": "<h2><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a></h2>\n<p>You booked the table from 7:30 to 9 in a Restaurant. In Germany, if you were not there by usually 15 minutes after the reserved slot started, your reservation is canceled. Some restaurants extend those 15 minutes to 20 or even 30, but general consensus is to be somewhat on time, and only to request the reservation for the time you expect to arrive.</p>\n<p>Under German legal opinion reservation is not a contract for you to come and get a chair, as long as nothing is ordered: it is an offer of the restaurant and your offer to come. The actual contract happens only after you arrived and chose a meal. You <em>are</em> however liable for cost that happen from you not showing up, e.g. the cook started to make a meal you ordered or they had to send away guests he could have served instead of you due to your reservation and then not showing up.</p>\n<p>As the kitchen reasonably didn't expect you to arrive at all anymore after 7:45, they closed and you have no recourse.</p>\n",
"score": 5
}
] |
[
"contract-law",
"breach-of-contract",
"food"
] |
Counter suing in the same lawsuit?
| 0 |
https://law.stackexchange.com/questions/88143/counter-suing-in-the-same-lawsuit
|
CC BY-SA 4.0
|
<p>Party A sues Party B in court for $10,000 due to breach of contract. Party B denies the claim and holds that Party A owes them $5,000 due to breach of the same contract.</p>
<p>Can Party B counter sue Party A during the same court case or is Party B required to file a separate lawsuit against Party A for the counter suit?</p>
<p>Assuming not, would it matter if Party B agrees that it owes Party A $10,000 but because of the breach by Party A (of a different provision of the contract) it holds that the amount should be reduced by $5,000?</p>
| 88,143 |
[
{
"answer_id": 88145,
"body": "<blockquote>\n<p>Can Party B counter sue Party A during the same court case or is Party B required to file a separate lawsuit against Party A for the counter suit?</p>\n</blockquote>\n<p>Party B should countersue. In fact, filing a separate suit is most likely to get consolidated with the court proceedings that party A initiated via his complaint.</p>\n<blockquote>\n<p>would it if Party B agrees that it owes Party A $10,000 but because of the breach by Party A (of a different provision of the contract) it holds that the amount should be reduced by $5,000?</p>\n</blockquote>\n<p>Yes, it would matter. This tells the court that it only needs to decide B's claim, since A's claim is undisputed.</p>\n<p>If B has lawful reasons for disputing A's claim, it is in B's best interests not to concede liability. By contrast, if the court considers B's position vexatious, B is at risk of sanctions on B and/or being ordered to compensate A for more than the damages from B's breach of contract.</p>\n",
"score": 2
}
] |
[
"united-states",
"contract-law",
"civil-law",
"new-jersey"
] |
Can a landlord ask me to see my luggage when moving in?
| 10 |
https://law.stackexchange.com/questions/17184/can-a-landlord-ask-me-to-see-my-luggage-when-moving-in
|
CC BY-SA 4.0
|
<p>I am moving into a new home where landlord is living close by.
I paid the rent and when I was about to move in, I came to get the key and the landlord told me that I cannot get it because I did not bring the luggage with me.</p>
<p>The landlord told me that he cannot give me the key because he has to see my luggage. first. To me that sounded like a very weird request, but I had no choice but to accept it. I would not get the keys otherwise.
I do not want to move in the exact day when the rent starts, but a bit later though.</p>
<p>What should I do in this case? This sounds very weird to me. I do want to have good relations with my landlord, but when I experienced this I can't help but get suspicious that I will always have troubles with this landlord. Also is it even legal that my landlord is withholding the keys from me?</p>
<p>All this is happening in Germany, so German laws apply here.</p>
| 17,184 |
[
{
"answer_id": 17197,
"body": "<p>Once your rental contract starts, your landlord must give you access to the rented flat. If he doesn't do so he is in breach of contract. You could sue him, but that would be a bad start for a longer term contractual agreement. It might be less time and effort to look for a new flat. And do you really want to be in a long term contract with someone who breaches contract right from the start based on arbitrary reasons? In any case, you can and you should cut the rent proportionally for every day without access to the flat.</p>\n\n<p>Your landlord has by no means a right to check your luggage. Even if there would be such a regulation in the contract, it would be void, because of invasion of privacy. It looks to me that you are in for some bad times with such a landlord. I can assure you that most landlords are not like this. Another reason to probably look for a new flat. Legally you are right, but what does that help you if your landlord is trouble?</p>\n",
"score": 16
}
] |
[
"rental-property",
"germany",
"landlord"
] |
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