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Jewish World Review Feb. 7, 2011 / 3 Adar I, 5771 Damages and Penalties By Alan Douglas
http://www.JewishWorldReview.com |
Drachenfutter is an important German custom. The doctrine of Clean Hands is an important principle in old English law of equity. If you are not familiar with these, allow me to introduce you to them. By remembering these two items, Drachenfutter and Clean Hands, you can be spared some pain with future contracts, and personal relationships.
In the ancient times, before there were laws, codes, legal rules, and regulations, if a dispute occurred, it was left up to the deity to decide the consequences. Ancient priests, oracles, witch doctors, caliphs, and kings ruled with divine authority, making it difficult to appeal. As the status of the people went from being slaves, subjects, and property, to citizens with rights, rules were developed by Hammurabi, Napoleon, and Martha Stewart.
When someone hurts another person, an issue may well arise regarding who caused the injury. This essay does not address causation, just damages and penalties that are called remedies. To "even the score" the legal system imposed damages and penalties. Some legal systems contain built-in remedies. In England the losing party in a lawsuit pays damages, penalties, plus the winning side's legal costs and fees. Civil law has formulas to calculate what damages and penalties you're entitled to. If you are injured on the job, there are Worker Compensation tables that will determine how much a finger, arm, toe, leg, or eye is worth in your state. Citizens involved in dry-cleaning cases are shocked to discover their favorite dress or shirt that was ruined by the cleaners is worth what a four-year old shirt is valued at Goodwill. If you want replacement value get insurance and sentimental value is best discussed with your therapist. Since in America you pay your own lawyer, the net amount is the amount of a four-year old shirt less your legal fees and costs. You won't have sufficient funds to buy another four-year old shirt! The courts make it nearly impossible to come out ahead, or even.
The English laws of equity which we inherited require that before you can ask for a remedy, you have "Clean Hands". You cannot come into court asking for justice if you have done something bad. George Orwell said, "Restatement of the obvious is sometimes the first duty of a responsible leader. There is a lot of talk about our rights and duties but legal systems really need common, self-interest as their primary tenet. This reminds me of a sign in the bathroom of a grocery store which summed up this principle with the warning, "All Employees — Wash your hands thoroughly with soap and water. Protect you, our customers, and our jobs!" Restaurants and food stores know that if infectious diseases are spread due to the negligence of their employees, it will result in lawsuits, criminal charges, and maybe even the closing of that business. If customers are afraid, or do not trust a company, that company is doomed. It doesn't matter if the employees did not exercise sufficient care, or if it was caused by intentional acts; the result is the same either way. Breaking the rules can endanger us all, and it can disqualify you from legal protection. So, if you are naughty, you may not be entitled to be compensated for your damages.
When you sign contracts or agreements, you can agree in advance on what the compensation for a mistake up will be. If it's outrageously high and not logically related to your damages, the courts may designate it as a "penalty" and refuse to enforce it. You can place a clause in your agreements called "liquidated damages" with the amount of damages decided in advance (or by some formula agreed on in advance as well). If you are hurt because of the other party's misconduct or negligence, you are entitled to the agreed amount. Every day the builder is late in finishing the construction of your house is worth…" Thinking about damages before you sign agreements is a good way to protect yourself. It also helps to avoid problems. It forces both parties to talk about what each of them is responsible for and what will happen if either one fails to perform as promised.
Reviewing what can go wrong and how it will be fixed before you work with partners is not considered negative thinking. In fact, it is smart thinking. Business and relationships could use more "what if" conversations. Liquidated damages can take many forms. "Drachenfutter" is a German form of liquidated damages. Before going out to carouse, drink till all hours, and party hearty, German husbands go out shopping to buy their wives a nice gift. The husbands have the gift wrapped and ready to bestow upon their angry (and appreciative) wife upon their late arrival home.
In personal relationships you have to appreciate what you are going to pay in damages and penalties. In comedian, George Burn's autobiography he describes how his wife Gracie responded to a guest who admired an exquisite chandelier in their home. Gracie thanked the guest for their compliment and said it was a bit extravagant and lavish, but it had been a present from George, after he had an affair. Gracie sighed, and added, "If George would only have another affair there's this wonderful antique armoire I would like to buy."
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JWR contributor Alan Douglas, an author, media executive, speaker, and attorney, lives con brio- except when he is grumpy.
Obstacles with Impossibilities
© 2010 Alan Douglas
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