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Pathfinder 1E This is why pathfinder has been successful.
- Thread starter Evenglare
- Start date
OK.
I teach Equity and Trusts (in Australia) - we still take British decisions seriously on the whole (although the British law of confidence/privacy is in my view unorthodox by Australian standards), but Canadian Equity decisions are generally regarded as highly unorthodox - prescriptive rather than merely proscriptive fiduciary duties, and the constructive trust as a remedy for breach of confidence!
On the other hand, we've just recently had a major national reform of consumer contract laws. I don't know the details, but from your exchange with S'mon I'm guessing it would not be the sort of thing you would approve of.
I'm fine with regulations that offer a level playing field in consumer interactions - requirements for plain language in a contract, contra preferentum, making shrinkwrapped licenses that you can't review until after you pay money non binding etc.. But as long as the terms of a deal are clear and entered into freely by both parties, they should be capable of determining what fair is and isn't and should be held to their bargain.
I see fairness as a continuum and its easy to spot things at the fringes that are unfair - duress, unconscionability etc.. but outside of those extremes it's a world of grey and a court is no better situated to make that determination than anyone else. We wind up with palm tree justice.
We are actually taught a lot of Australian decisions, Muschinski v. Dodds being the first one that pops to mind. Because our property and civil rights regimes differ from province to province its encouraged a comparative / pick and mix approach to the common law - see how the UK handles a new problem, see how Australia does it, see how the US does, see how the other provinces do it, pick the one that suits the circumstances here best.
Lac Minerals is a great case isn't it?
I see fairness as a continuum and its easy to spot things at the fringes that are unfair - duress, unconscionability etc.. but outside of those extremes it's a world of grey and a court is no better situated to make that determination than anyone else. We wind up with palm tree justice.
We are actually taught a lot of Australian decisions, Muschinski v. Dodds being the first one that pops to mind. Because our property and civil rights regimes differ from province to province its encouraged a comparative / pick and mix approach to the common law - see how the UK handles a new problem, see how Australia does it, see how the US does, see how the other provinces do it, pick the one that suits the circumstances here best.
Lac Minerals is a great case isn't it?
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Remus Lupin
Adventurer
I'm not a lawyer, but I find this exchange fascinating. Help educate me here: Is the idea that if a deal were clearly disadvantageous to me (i.e., "unfair"), then I would not have knowingly entered into it. But since I entered into this unfair, disadvantageous arrangement, I must not have had fully knowledge of what I was doing, so therefore couldn't be said to have entered into it freely, since I didn't know what I was entering into?
In light of the home mortgage crisis here in the U.S. this has been a big source of discussion -- what did people know, and what should they have reasonably been expected to know. I don't want to open up that can of worms, but I'm fascinated by the nature of the discussion, particularly as it takes place in a somewhat different legal system.
In light of the home mortgage crisis here in the U.S. this has been a big source of discussion -- what did people know, and what should they have reasonably been expected to know. I don't want to open up that can of worms, but I'm fascinated by the nature of the discussion, particularly as it takes place in a somewhat different legal system.
The way I had it explained to me is that there are two competing currents in the law.
The first is that people are intelligent rational beings, deserving of respect and independence. If an adult makes a decision or takes an action, they should be held to the consequences (good or bad) of their decision or action. If you enter into a contract you should fulfill it, or suffer the consequences.
If you don't, you are basically saying, I think you are a child - I don't think you have the competence required to make decisions, and I am removing your agency. You are disrespecting them.
Built into this view is an assumption that there is a roughly level playing field. An example of this is two business people or two corporations negotiating a contract.
The competing view is based on an assumption the playing field is not level and there are power dynamics that make a true bargain between equals impossible or unlikely. An example of this would be a waiver printed on the back of a ski lift ticket in tiny print or a undocumented / illegal migrant trying to negotiate a contract with a farmer, or getting someone drunk and then having them sign a contract.
Holding the weaker party to a contract in these cases seems cruel or unreasonable.
The role the law plays depends on which view you adopt. Canadian courts have tended to adopt the first view when dealing with business people and corporations and the second when dealing with consumers. Sometimes the law is concerned solely with making the process of entering into the contract fair (stopping people from lying or misrepresenting, or threatening) and sometimes (rarely) the law is concerned with the substance of the contract (were the terms fair). A good lawyer will harness one or more of the underlying viewpoints that the law is built on when framing your case and then tie that to an existing common law remedy / doctrine.
A good introduction to all this is Lord Denning's decision in George Mitchell (Chesterhall) Ltd. v Finney Lock Seeds Ltd. (http://www.bailii.org/ew/cases/EWCA/Civ/1982/5.html - look for The heyday of Freedom of Contract) - Depending on your point of view he was either a power mad meddler or the best jurist of the 20th century. He had a clear view of how he wanted the world to work and used his position to modify the common law to enact that vision.
Thornton v Shoe Lane Parking Ltd (http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html) is another classic Lord Denning protecting the consumer case.
The first is that people are intelligent rational beings, deserving of respect and independence. If an adult makes a decision or takes an action, they should be held to the consequences (good or bad) of their decision or action. If you enter into a contract you should fulfill it, or suffer the consequences.
If you don't, you are basically saying, I think you are a child - I don't think you have the competence required to make decisions, and I am removing your agency. You are disrespecting them.
Built into this view is an assumption that there is a roughly level playing field. An example of this is two business people or two corporations negotiating a contract.
The competing view is based on an assumption the playing field is not level and there are power dynamics that make a true bargain between equals impossible or unlikely. An example of this would be a waiver printed on the back of a ski lift ticket in tiny print or a undocumented / illegal migrant trying to negotiate a contract with a farmer, or getting someone drunk and then having them sign a contract.
Holding the weaker party to a contract in these cases seems cruel or unreasonable.
The role the law plays depends on which view you adopt. Canadian courts have tended to adopt the first view when dealing with business people and corporations and the second when dealing with consumers. Sometimes the law is concerned solely with making the process of entering into the contract fair (stopping people from lying or misrepresenting, or threatening) and sometimes (rarely) the law is concerned with the substance of the contract (were the terms fair). A good lawyer will harness one or more of the underlying viewpoints that the law is built on when framing your case and then tie that to an existing common law remedy / doctrine.
A good introduction to all this is Lord Denning's decision in George Mitchell (Chesterhall) Ltd. v Finney Lock Seeds Ltd. (http://www.bailii.org/ew/cases/EWCA/Civ/1982/5.html - look for The heyday of Freedom of Contract) - Depending on your point of view he was either a power mad meddler or the best jurist of the 20th century. He had a clear view of how he wanted the world to work and used his position to modify the common law to enact that vision.
Thornton v Shoe Lane Parking Ltd (http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html) is another classic Lord Denning protecting the consumer case.
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S
Sunseeker
Guest
I don't buy settings...I buy rule books. Can I get Paizo's rules for free? Yes I can. What does that mean? I've never spent a dime on Paizo products.
Do I have to buy Wizard's rules? Yes I do. What does that mean? Wizards gets my money.
Sorry Paizo, I make my own adventures, running someone else's doesn't interest me.
Do I have to buy Wizard's rules? Yes I do. What does that mean? Wizards gets my money.
Sorry Paizo, I make my own adventures, running someone else's doesn't interest me.
gamerprinter
Mapper/Publisher
Which is really funny about me, since I too make my own settings and adventures, so I never buy Paizo adventure paths, anything about Golarian nor PFS material. And despite relying on the PRD and d20pfsrd.com heavily when creating my adventures, I own the CRB, APG, GMG, B1-3, and UC (hardcovers for the 1st two and PDFs for the rest).
Wizard's? Wizards could offer me money to play their game and I'd turn them down. Someone once offered me their 4e Gift Box for free and I said "no, thank you."
In a way, we are in the same boat, just having different resolutions in dealing with it... hmmm.
I don't know the Australian statutory regimes very well, but we have a non-statutory (ie judge-made) prohibition on "unconscientious dealing". The test for unconscientiousnes is that, in negotiating the contract, one party exploits a special disadvantage that they know the other party to have.
The mere fact that a contract is disadvantageous to one party is not, in itself, conclusive of unconscientiousness, but the courts will treat it as giving a reason to enquire further into whether or not their was any exploitation of a special disadvantage.
EDIT: Australia has the strongest common law/equity divide of any contemporary common law jurisdiction, and the prohibition on unconscientious dealing is an equitable doctrine.
Up north here the test we use is:
“Where a claim is made that a bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to the ignorance, need or distress of the weaker, which would leave him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When this has been shown a presumption of fraud is raised, and the stronger must show, in order to preserve his bargain, that it was fair and reasonable.”
It's almost never deployed. Calling someone a fraudster and then failing to prove it tends to result in special costs being awarded (pay the opposition's legal fees).
“Where a claim is made that a bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to the ignorance, need or distress of the weaker, which would leave him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When this has been shown a presumption of fraud is raised, and the stronger must show, in order to preserve his bargain, that it was fair and reasonable.”
It's almost never deployed. Calling someone a fraudster and then failing to prove it tends to result in special costs being awarded (pay the opposition's legal fees).
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