Debates
11 Feb 10
11 Feb 10
http://abcnews.go.com/GMA/John_Edwards_Scandal/elizabeth-edwards-threatens-husbands-aide-lawsuit/story?id=9802774
North Carolina is one of seven states that allows a third party to be sued for the dissolution of a marriage. "Alienation of affection" suits are typically filed by a spurned spouse against a husband or wife's lover but could be interpreted to include additional third parties, legal experts said.I had never heard of this type of lawsuit until now. I think it's bogus [apologies to Bill and Ted] to sue a third party, or even the spouse's lover, over something the spouse consents to do.
Can any of you legal experts out there give a good reason to allow these kinds of lawsuits?
11 Feb 10
1 edit
Originally posted by SwissGambitWell, first of all, you may have never heard of it, but this cause of action existed before your great great grandfather was born. So, it's not like a NC politician woke up one morning and said "Gee, let's punish people for adultery." NC is just one of the few states that has kept the cause of action around.
http://abcnews.go.com/GMA/John_Edwards_Scandal/elizabeth-edwards-threatens-husbands-aide-lawsuit/story?id=9802774
[quote]North Carolina is one of seven states that allows a third party to be sued for the dissolution of a marriage. "Alienation of affection" suits are typically filed by a spurned spouse against a husband or wife's lover but could be inter Can any of you legal experts out there give a good reason to allow these kinds of lawsuits?
The reason for it is simple. The third party intentionally interfered with a contractual agreement the couple had. There's a cause of action called "tortuous interference with contracts" that is still generally recognized that says, in essence, if I convince your partner to breach his contract with you, you can sue me for that interference.
This is the same idea. By cheating with X's wife, you convinced X's wife to break her agreement with X, thereby harming X's marriage.
Should this cause of action exist? I dunno. Personally, I'd probably vote to scrap it, but I've heard of dumber causes of action.
12 Feb 10
Originally posted by sh76The main logical flaw is the assumption that X's wife is totally unable to think for herself. Perhaps X's wife initiated the whole thing - or at the very least, she played a significant part in doing the dance.
Well, first of all, you may have never heard of it, but this cause of action existed before your great great grandfather was born. So, it's not like a NC politician woke up one morning and said "Gee, let's punish people for adultery." NC is just one of the few states that has kept the cause of action around.
The reason for it is simple. The third party inten ...[text shortened]... ersonally, I'd probably vote to scrap it, but I've heard of dumber causes of action.
On the other hand, in previous centuries, most men probably did believe that women weren't really able to think for themselves.
12 Feb 10
Originally posted by MelanerpesAlienation of affection cuts in both directions, so implications of a misogynistic motive for the cause of action are misplaced.
The main logical flaw is the assumption that X's wife is totally unable to think for herself. Perhaps X's wife initiated the whole thing - or at the very least, she played a significant part in doing the dance.
On the other hand, in previous centuries, most men probably did believe that women weren't really able to think for themselves.
In any case, that same logic can be applied to tortuous interference with contracts. Yes, everyone has freedom to do what they want. But ascribing civil liability to someone who intentionally interferes with what he knows is a pre-existing legally binding agreement doesn't seem to me to be the worst idea in the World.
12 Feb 10
Originally posted by Melanerpesthat sounds like something to be determined during the trial.
The main logical flaw is the assumption that X's wife is totally unable to think for herself. Perhaps X's wife initiated the whole thing - or at the very least, she played a significant part in doing the dance.
On the other hand, in previous centuries, most men probably did believe that women weren't really able to think for themselves.
12 Feb 10
Originally posted by SeitseNo. I don't mind. It's just that you completely missed the point of the law.
What do you mean?
Of course I didn't. I rarely do. I am just giving my opinion about
laws like the one mentioned by the OP. Do you mind?
However, you're right. That's none of my business.
Carry on.
12 Feb 10
Originally posted by sh76The point of the law is for a hurt loser to obtain redress, through a
No. I don't mind. It's just that you completely missed the point of the law.
However, you're right. That's none of my business.
Carry on.
ius mercante contractual approach conveniently (and erroneously)
applied to an ad hoc civil institution, just to deter people to do
something which is morally condemned by a few beliefs.
Want to argue with me about the "contractual" nature of marriage?
12 Feb 10
Originally posted by SeitseWhat's the basis for your assertion that marriage is something other than a contractual agreement?
The point of the law is for a hurt loser to obtain redress, through a
ius mercante contractual approach conveniently (and erroneously)
applied to an ad hoc civil institution, just to deter people to do
something which is morally condemned by a few beliefs.
Want to argue with me about the "contractual" nature of marriage?
12 Feb 10
Originally posted by SeitseO.k., I just read your post. I maintain my observation.
The point of the law is for a hurt loser to obtain redress, through a
ius mercante contractual approach conveniently (and erroneously)
applied to an ad hoc civil institution, just to deter people to do
something which is morally condemned by a few beliefs.
Want to argue with me about the "contractual" nature of marriage?
Besides, you are making a legal assertion based on a flawed analogy.
First you have to justify that the juridical nature of marriage is the same
as the juridical nature of a binding and enforceable agreement.
And to do so, of course, you must make use of Roman Law principles
and, even better, the nature of both juridical acts from their primitive
origins.
12 Feb 10
Originally posted by sh76Read my post above.
What's the basis for your assertion that marriage is something other than a contractual agreement?
You say it is and you said it before I made my post.
Hence, please back up your affirmation that it is. Then
I will give it a shot.
---
Hint: At Law School (depending which one and in which
country) you surely attended Theory of Contracts, right
after Roman Law, Historical Civil Institutions, and then
Theory of the Legal Act. The answer lies there.
12 Feb 10
Sh, dude, I will go now for dinner and drinks with the missus but I don't
want to be rude and just disappear in the middle of such an interesting
situation.
Thus, I will leave you with some interesting questions. Not all the necessary
questions are there, but it is a good start. If you go one by one carefully and
with the text book in hand, the answers will take you towards a reasonable
legal doubt regarding how much juridical sense makes to equate contracts
in general with marriage as an institution.
* What is the juridical nature of a contract?
* What are the elements of a contract?
* What is the legal nature of performance?
* What is enforceability and is a contract a contract if not enforceable?
* What is the personal rights frontier superseding any contractual enforceability?
* What are the juridical characteristics of marriage as a legal institution?
* Is marriage a reciprocal exchange of enforceable performances?
* Is the juridical nature of contractual enforceability equatable to "enforceability" of marriage?
Legally developed secular societies have gone through these same exercise and,
fortunately, scrapped off their legislation some atavic, ridiculous and subjectively
partial measures originally thought for keeping the sanctity of marriage intact.
Have a lovely weekend, dude! 🙂
12 Feb 10
1 edit
Originally posted by SeitseMarriage is an agreement. That is so plain an obvious that I have trouble imagining that anyone would debate it. I'm not going to set about proving that marriage is an agreement any more than I'm going to set about proving that it's sunny outside right now.
Read my post above.
You say it is and you said it before I made my post.
Hence, please back up your affirmation that it is. Then
I will give it a shot.
---
Hint: At Law School (depending which one and in which
country) you surely attended Theory of Contracts, right
after Roman Law, Historical Civil Institutions, and then
Theory of the Legal Act. The answer lies there.
If you want to argue against the obvious, the burden is on you to state your case.