If you ever watch children at play, you realize they know a lot about the Law.Fairness.Takingturns.Possession. There are lots of laws we already know.
Many laws are complex and technical, and so is the special language associated with them. It is the main purpose of this book to explain some important areas of law and the language lawyers use--that is, LAW WORDS. But let us start the ball rolling at a simpler level. Happily, there are principles of law that are truly obvious, based on shared truths and common sense adages. Below is a rather random collection of some of these truisms and examples of how they operate in the legal system.
If you don't speak up, you don't get. Or, as mother said, ìThe worst thing that can happen is that they'll say no. In law, as in life, silence may be interpreted as acquiescence. That is, if you donít speak up when some- thing goes wrong or a transaction occurs, the other party may reason- ably believe that you consented to whatever happened and may rely on that consent. Thereís even a word for this: Lying by. Following that you may be estopped (barred) from denying that the transaction occurred.
For example, the defense of condonation exists in fault divorce. This is a conditional pardon. If one spouse commits a marital offense known to the other spouse and they continue to cohabit, it is said that the other spouse has forgiven the offense by condonation.
If you receive a monthly bank statement that contains an error (such as a forgery or an error in summarizing your account) and you do nothing, after a while you may be said to have waived your right to correct it. Changes may be made later, but it may be much harder to make them. Also, of course, all lawsuits are versions of this truism. When the plaintiff (Π) begins a lawsuit, he is seeking a remedy from the defendant (∆). So you see, Mother was right again!
2. Possession is nine tenths of the law.
When children shout, It's mine!î they already know this truth. The law generally favors keeping matters as they are, maintaining the status quo.
All things being equal, a person in possession of something is more likely to keep it. A competitor for the object would have to prove that there is a need for change. This leads to another related truism: Donít fix it if it ainít broke! Leave well enough alone!
For instance, in a divorce situation, the parent with custody has a better chance of maintaining it han the other parent does in obtaining it. The house owner who keeps the last payment from the contractor until every last detail is completed to satisfaction knows this rule. Generally, itís easier to keep money than to fight for it, as the contractomay need to do.
3. It was only an accident!
I did not mean to . . .Kids say this all the time. They know it matters. In the law, for example, this principle appears all the time. Hereís where children understand instinctively this fundamental basis of the American legal system: A personís intent is very important in determining the effect of lots of actions, from crimes to torts to contracts. Often, if it was ìonly an accident,î the action may be negligence; if it was ìon purposeî (intentional), it may be a crime.
4. First come, first served.
Or, 'The early bird catches the worm.' Or, He who hesitates is lost.' For example, if you have a security interest in someoneís property, you have to protect that interest by perfecting it. This involves several steps; including providing notice-notifying the entire world that you have a security interest in the property, the collateral. In this process it pays to be first, because the courts will use your date of perfection to give you priority over other perfected interest holders, should a dispute arise later. This process leads to the term ìRace to the courthouse.'
Then, too, there is the equitable principle of laches. You canít sleep on your rights. If you have a case you wish to pursue, youíd better do it! Donít wait too long. Otherwise, the other side may raise the defense of laches, as it would not be fair to permit you to go forward after you waited too long. On the other hand...
5. Let a sleeping dog lie.
Leave well enough alone. For instance, if enough time passes, the other side may not be able to sue you - may have exceeded the statute of limitations may provide you with the laches defense (see above), may simply run out of steam, or their best witness may disappear or . . . whatever!
6. Quit while you're ahead.
This principle is very important in negotiations. If you win a point, get it in writing and leave. Donít wait around for the other side to change its mind. This leads to another adage...
7. There's many a slip between the cup and the lip.
Thus, lawyers will always tell you to ìget it in writing.î If you donít get it in writing, ìsigned, sealed, and delivered,î lots of unexpected changes can happen in the meantime. This is roughly equivalent to Yogi Berra's famous slogan; 'It ain't over till itís over.'
8. It's not fair!
Again, kids are right on the money! This oft-heard children's lament un- derlies the American legal system. From equal protection to due process the system is designed to assure as much fairness as possible. Then, too, remember there is the entire body of law called equity that has as its pur- pose the pursuit of fairness, the assurance of justice.