Civil Code - - consultation no. 1

[Midsummer Night's Dream]

- - Retracted - -

Edited April 10, 2020 by Midsummer Night's Dream

[Midsummer Night's Dream]

- - Retracted - -

Edited April 10, 2020 by Midsummer Night's Dream

[Felix]

Our intention for this code is a comprehensive place that an attorney can consult whenever dealing with civil actions and that it's aimed towards ESL learners. We are mostly looking for legal words or concepts that could be better explained (either in the clause or the definitions section).

Edited June 2, 2019 by Felix

[Midsummer Night's Dream]

Some suggestions on points to discuss:

 

 

> Chapter 1, Section 4 (agency: employees, contractors and employers)

 

Question: Should employees and contractors be regarded as agents of the person who hired them?

In this code, the default position is that an employee is an agent of the person who hired them (the employer who is also a "principal" in this legal relationship); further, a contractor becomes an employee (which, in turns, means the contractor becomes an agent as well) of the person who hired and retained them. Should this be the default position?

 

Why it matters: Having agency, for the purposes of that Subtitle, would mean that the person who hired them is can be responsible for any loss caused by them as long as the loss occurred within the "scope of employment." 

 

(Keep in mind that, while agents have authority to negotiate and enter into agreements on behalf of the principal, this is not engaged in this Subtitle (torts), because it is an area of contracts which is an entirely separate Subtitle.)

 

 

 

> Chapter 5, Section 2 (duty of care)

 

Question: Are there any other situations where it would not be fair, just or reasonable to impose a duty of care? Also, should any of the situations currently covered be changed in some way?

 

Why it matters: Sometimes imposing a duty of care can have consequences a society would prefer to avoid. When a court imposes a duty on someone to act with "reasonable care and skill,"  that person is exposed to liability when they fall below that standard. The natural result is that they would take extra caution to avoid falling below the standard. Sometimes this extra caution has adverse consequences that are best avoided.

 

A common consequence regarded as best to avoid—one of the most—is "opening the floodgate;" that's to say, courts do not want to create new duties where doing so would result in an overwhelming amount of complaints. The law is supposed to move incrementally and in predictable ways. By creating new duties that didn't exist before, the law can become unpredictable and move towards disorder, rather than maintain order. I will grant that "floodgate litigation" is not problem in GTAW because our courts aren't overwhelmed and there's no risk of them becoming so; but we also don’t want to open the floodgates because we probably don't want to create "compensation culture" — as the phrase goes — where people preoccupy themselves with looking for reasons to sue.  

 

So which situations are codified currently? There are eleven contained in three subsections (c, d, and e):

 

1. A witness of fact does not owe a duty to a victim of crime.

 

2. Nor does a witness of fact owe a duty of care to an defendant on trial

 

(justification: because we don't want to make witnesses fearful of being sued).

 

3. An expert witness does not owe a duty to a victim of crime.

 

4. Nor does an expect witness owe a duty of care to a defendant on trial

 

(justification: same as for witnesses of fact, plus they are self-regulated so when their conduct falls below the standards of their profession, they can be disciplined that way)

 

5. A judge does not owe a duty of care to a victim of crime.

 

6. A judge does not owe a duty of care a defendant on trial.

 

(justification: judges cannot be sued, again because of the consequences of exposing them to suit, as well as the fact that the state provides mechanisms to appeal errors which judges make).

 

7. A prosecutor owe a duty of care to a victim of crime.

 

8. Nor does a prosecutor owe a duty of care to a defendant on trial.

 

(justification: generally want to avoid making prosecutors fearful because their role is an important one, and self-regulated by their professional peers)

 

Possibly the most controversial one where jurisdictions differ:

 

9. A police officer does not owe a duty to a victim of crime. 

 

10. Nor does a police officer owe a duty of care to a defendant on trial

(justification: like prosecutors, police officers have an important role in investigating and ferreting out crime, and making them overly cautious generally doesn't help)

 

And possibly the least controversial: 

 

11. A rescuer or good samaritan does not owe a duty to a person in distress.

 

(justification: it’s just not nice suing someone who tried to help you just because they failed to achieve an outcome you'd have preferred; and, if we allowed this, it would make people more fearful and inclined to avoid helping one another, which is a quality most societies would prefer to avoid)

 

Keep in mind that those situations in the code are not exclusive of any other; courts are free to create new situations because of Section 2(a)(iv). Also keep in mind that some jurisdictions have removed these "de facto immunities," such as Canada and England, where expert "immunity" has been either diminished or removed altogether.

 

 

Since this post turned out to be long. I will leave it here and bring up some other points to discuss later.

Edited June 8, 2021 by Midsummer Night's Dream

[Midsummer Night's Dream]

Added the following to general defences under Part B (defences):

 

 

[Midsummer Night's Dream]

Update  Completed and added some Chapters to Part C (limitations).

[Midsummer Night's Dream]

 Update  Completed all Chapters to Part C (limitations). The first draft of Subtitle 1 is complete. Work continues on Subtitles 2 and 3.

 

 

 

Part C creates time limits for complaints depending on the nature of the complaint. It also contains "tolling" (where the 'clock' stops and does not count towards the limit).

 

The time limits are:

 

 

 

When does the clock (repose) begin?

 

 

It begins when at the point at which three things all are true: 1. you became aware of some damage, injury or loss because of some wrong by another, 2. you became aware of who that person who wronged you is, and 3. you became aware that you have the choice of complaining. Keep in mind that for 1. and 2., the clock may begin when it was reasonably expected that you become aware, rather than when you actually became aware.

 

So, for example, if you want to bring a complaint for defamation (by way of slander), you have 21 days of rest/repose; you must bring your complaint within 21 days of those three things above all being true. Otherwise, your complaint is out of time.

 

There are situations where this clock is paused. These situations depend on the nature of the complaint, but there are also general situations that apply to all complaints: e.g. where it would have been impossible for you to bring a complaint (e.g. you were in a medically-induced coma), or where the defendant has wilfully obstructed you to prevent you from bringing a complaint.

 

 

Tolling based on the nature of the complaint:

 

 

 

 

 

 

Tolling in general (applies to all complaints):

 

 

 

Edited June 7, 2019 by Midsummer Night's Dream

[Darex567]

Where's that document at? 

@Midsummer Night's Dream

[Midsummer Night's Dream]

1 hour ago, Darex567 said:

Where's that document at? 

@Midsummer Night's Dream

This was discontinued a while ago because there was little interest in codifying non-criminal matters.  The document is also in use elsewhere and so, in light of GTAW’s management aversion towards cooperating with other communities, reproducing it here probably wouldn’t be appropriate, unfortunately.