What is the exact meaning of this Article about loss of liability limitation? The Article below comes from a Convention. I am confused about the exact meaning of its last part: A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. I divide this Article into three parts for easy understanding: if it's proved that the loss resulted from his personal act or omission, (which is) committed with the intent to cause such loss, or (committed) recklessly. Thus my question is: Should the last part -- “and with knowledge that...” -- come after “recklessly,” after “committed with the intent”, or should it modify both? Please let me know how you understand (and divide) this Article. Any suggestions are welcome. Thank you.
Maritime law has a lot of weird rules, but the normal rule of statutory construction is that scienter requirements -- intent, knowledge, recklessness, etc. -- apply to everything that comes after them, until a new scienter requirement is stated. That would leave you with a statute looking like this: A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from: his personal act or omission, committed with the intent to cause such loss; or his personal act or omission, committed recklessly; and committed with knowledge that such loss would probably result.
All torts have to be proved. In 99.99% of cases the proof is by admission of the tortfeaser. That is, they agree to pay damages with or without admission of liability. Where liability is contested, there are never any “slam dunks”. There are strong cases, even very strong cases, but when someone else is deciding the case, there are no certainties. Remember, if your opponent thought they were going to lose, they’d settle. Looking at your examples, it seems that the tort you are thinking of is negligence. In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant: had a duty to the plaintiff, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. Where the issue is not one of evidence, that is, the facts are as you say and are not in dispute, the question is not “what happened”, but “is what happened negligence”. For all the examples, 1, 3, and 4 are probably not in dispute: there was a duty, the conduct caused damage at law and the plaintiff actually suffered harm. The question to be decided is whether the driver failed to conform to the required standard of care. For examples 2 and 3, most courts would conclude they didn’t. For example 1, some courts might decide that the way the driver drove did conform to the required standard and others that they didn’t. The legal argument would not be about “proof”, it would be about the standard the law requires.
Your personal liability depends on your state law regarding the family car doctrine, so the answer there is "maybe" (Texas is not a state with that doctrine, so simple ownership of the car does not confer liability). You would be liable if your supervision of the child was negligent, which means approximately that you knew or should have known that she was a bad driver and would cause damage. Still, the insurance company is suppose to indemnify you (plural) against such loses, as long as they are legally required to do so. That would include many considerations, such as whether the driver was covered under the policy, whether the car was being used contrary to the terms of the policy (being used commercially), and so on. The insurance company is entitled to make a reasonable determination of whether they are responsible for the loss (and if so, to what extent). If they actually decline to cover the loss, you would need to sue them to make them comply with the terms of the policy (and your lawyer would give you a detailed explanation of why they are not liable, in case they aren't). The plaintiff works with his insurance company to recover his insured losses, and with his lawyer to recover any uninsured losses. His insurance company works with your insurance company, up to a point, and then the lawyers get involved. Your daughter does not work with his insurance company, and your insurance company probably has said something along the line "only talk to us". The insurance that a driver typically has may cover some of their own medical costs, but does not provide a payment for "pain and suffering": that is an uninsured loss. It is not generally required that drivers carry insurance to cover their own medical expenses – it is required that they insure against damages, in general, suffered by other parties (if the defendant is at fault). So there is probably nothing for the plaintiff to work out with his insurance company. In Texas, if the defendant is entirely at fault, defendant will be liable for 100% of plaintiff's damages. If defendant is 90% at fault, defendant will be liable for 90% of plaintiff's damages. If defendant is 49% at fault, defendant is not liable. Defendant can, in any event, also sue for damages, so if defendant is 49% at fault, defendant can recover 49% of her damages. The insurance companies might be able to talk it out and reach a clear resolution of the matter, but it could be more in their interest to throw the dice and work it out in court. One can always sue at the very start, and drop the suit if it becomes advantageous.
By definition this is not an intentional crime or tort (i.e. civil wrong for which one can sue). There are several standards of intent (also called mens rea) other than knowledge that one is committing a crime or intent to commit a crime, that are commonly applied to criminal offenses and torts: Strict liability Negligence Gross negligence Willful and wanton conduct Recklessness Extreme indifference Strict liability would be highly unlikely to apply to unintentional encouragement of violence. Usually, in the criminal context, it applies to traffic offenses, like speeding or drunk driving defined by blood alcohol content. Negligence is often a basis for liability in a lawsuit or for other civil remedies (e.g. cause to fire someone from their employment), but is usually only a basis for criminal liability when a death or very severe injury results (e.g. vehicular homicide) or when the circumstances are such that there is a heightened risk involved in an activity (e.g. discharging a firearm, or treatment of a small child in one's custody). Even then, for criminal law purposes, liability is usually only imposed in cases of truly &quot;gross negligence.&quot; One could imagine highly stylized fact patterns where gross negligence encouraging violence could give rise to criminal liability (e.g. gross negligence by the commander of a military unit under military justice) but this would be a rare and exceptional situation. Willful and wanton conduct, and recklessness, don't require actual knowledge or specific intent, but do presume disregard for objectively obvious risks. Under the Model Penal Code, this is the default standard of intent that applies when no specific standard is articulated in a statute. Unintentional but reckless conduct encouraging people to be violent might very well give rise to criminal liability. Extreme indifference (also sometimes called deliberate indifference) is an extreme form of recklessness in which one acts with total disregard for the consequences when one clearly knows or should know that serious consequences are almost certain, even if the precise consequences to whom or what are not known. This level of intent is often treated as equivalent to intentional conduct and would often give rise to criminal liability. There are many potentially relevant federal and state statutes that could apply, but this is the general lay of the land regarding unintentional conduct.
Criminal negligence pertains to criminal acts, which are prosecuted by the government and where a defendant can be convicted and punished. There will be a statute explaining where "criminal negligence" is relevant and when it is applicable. Here is the section in Washington law about criminal negligence: A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. There are a number of criminal offenses where being "criminally negligent" in doing the thing is sufficient, for example mistreatment of a child or manslaughter. First degree murder requires "premeditated intent to cause the death of another person" which does not does not include "criminal negligence" (there is a separate clause about "under circumstances manifesting an extreme indifference to human life" which is different from criminal negligence). "Gross negligence" can arise in a number of other non-criminal circumstances, and is defined (and discussed) here. Gross negligence is the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care but care substantially less than ordinary care. This concept arises under numerous laws such as the gross negligence of government officers in fish and wildlife matters, where the game wardn can be sued and found civilly liable for gross negligence in performance of duties. He can't be imprisoned (it's not a crime), but he can be fired or forced to compensate the damaged party. There is no clear difference in what level of negligence we are talking about, instead the difference has to do what what kind of law we are concerned with. Usually (?), crimes are intentional acts where the prosecution has to prove that the defendant intended to do so-and-so. But laws are also written so that certain levels of bad behavior also punishable, such as tricking a person into falling to their death as part of a jackass stunt. One use of "gross negligence" in a civil case is that certain act may be immunized against liability arising from simple negligence (Good Samaritan law for example), but not gross negligence.
Severability My understand [sic] of contract law in general, is that an illegal or unenforceable clause does not render the whole contract void, but rather that specific clause is essentially stricken out, as if it did not exist. This is not true. Or, at least, not necessarily true. The courts, when interpreting a contract, try to give effect to the parties intentions. Or, more precisely, what an impartial, reasonable person would conclude their intentions at the time were based on the evidence. A contract is a set of mutual promises - if one of those promises is unenforceable, was it the parties intention that: the remainder be enforced, or absent that promise, they would not have made a deal, or they would have made a different deal, say, at a different price? It’s hard to make general statements about severability because they turn on the particular facts of each case. However, the common law doctrine is that severance means severance - you can take words out, but you can’t add words in or change the meaning of words you left behind. If doing that leaves nonsense, then the clause can’t be severed, and the whole contract is void. Further, what’s left must still be a contract. If the severed portion leaves a remainder that does not meet the requirements of a contract (e.g. because the severance totally removed one party’s consideration), then the whole contract is void. Similarly, if the severed item is central to the purpose of the contract, then the whole contract is void. Finally, at least in Common Law countries, there is a difference between provisions that are unenforcable (e.g. unfair restraint of trade clauses) and those that are illegal (e.g. your murder before resignation clause). In most jurisdictions, if a provision is unenforcable at common law or through statute, severability is an option. However, if the provision is illegal, then responses differ. In England and Wales, a provision that requires criminality or the commission of a tort cannot be severed - the illegality 'infects' the entire contract and makes the whole thing void. However, in Australia, the degree of illegality matters - heinous illegality infects the entire contract, but incidental illegality may not. For example, see REW08 Projects Pty Ltd v PNC Lifestyle Investments PTY LTD [2017] NSWCA 269 [23 October 2017] - the NSW Court of Appeal ruled that a property sale that contained clauses designed (by both parties) to defraud the state of Stamp Duty was nevertheless enforceable against the vendor - this would likely have been decided the other way in England and Wales. Of course, many contracts make express provision for unenforcable terms in what are known as severability clauses. These can go further than mere severance and allow the court to add words or even redraft entire sections to preserve the contract. However, this is not a panacea because what you agreed to in your severability clause may not be what you thought you agreed to when the rubber hits the road. For example, when you are forced to sell your Picasso for the 1,000USD deposit only, and you can't get the 100,000,000,000 Iranian Rial balance due to US sanctions. Therefore, deliberately leaving unenforcable provisions in a contract is dangerous because you don't know what you are going to get. However, is it unlawful? Well, that depends. There is nothing wrong with making legally unenforceable agreements. You and I can agree to go to the movies this Thursday. That's an unenforcable social arrangement, not a contract. If you stand me up, I can't sue you even if I bought popcorn for you. Similarly, there is no prohibition on having unenforcable terms in an otherwise legally binding contract, particularly if everyone knows they are unenforcable. Indeed, many large contracts are accompanied by Memorandums of Understanding that are unenforcable statements about how various organisations intend to work together to give effect to the contract. However, if the term is included to be deceptive or misleading by one party against the other (intentionally or otherwise), there may be legal consequences. A person who was misled into entering a contract may be able to have that contract declared void. Also, many jurisdictions make misleading and deceptive conduct in trade or commerce an offence.
It depends... It could be an offence under section 5 Public Order Act 1986: (1) A person is guilty of an offence if he— (a) uses [...] disorderly behaviour ... [...] within the hearing or sight of a person1 likely to be caused harassment, alarm or distress thereby. Then there's Causation to consider, which is: whether the defendant's conduct (or omission) caused ... harm or damage. And also recklessness, which can be described as: unjustified risk-taking. In R v G [2004] 1 A.C. 1034 two boys set a fire which caused significant damage. They were charged, and convicted, for reckless arson contrary to section 1 of the Criminal Damage Act 1971: (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. ... (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson. This conviction was quashed by the House of Lords who determined that test of recklessness for criminal damage is subjective and should take account of, for example the defendant's age (in R v G they were 11 and 12). The court determination was: A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk. But compare this with DPP v Newbury and Jones [1976] AC 500 if someone were to die as a result of being hit by a brick: The defendants, both teenage boys, had thrown a piece of paving stone from a railway bridge onto a train which had been passing beneath them. The object struck and killed the guard who had been sitting in the driver’s compartment. The defendants were convicted of manslaughter, and unsuccessfully appealed, on the ground that they had not foreseen that their actions might cause harm to any other person. Lord Salmon explained that a defendant was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that act caused death, and that it was unnecessary that the defendant had known that the act in question was unlawful or dangerous. 1Note that there has to be such a person, not a hypothetical one, to be guilty of this offence.
does the individual have a legal case against the company? Unfortunately, no. Some details and terms you use are unclear (e.g., "phantom" equity, "manifest" core technology, and so forth), but your overall description reflects that the individual sabotaged himself by signing a contract that does not mention the promise of equity through which he was persuaded to engage. A written contract usually supersedes any prior agreement --regarding the subject matter of that contract-- between the parties. That superseding effect means that the contract formalizes or overrides, accordingly, said agreements or promises. Since the initial promises of equity are not reflected in the "interim" contract, the investor's subsequent silence upon individual's reproach/reminders is from a legal standpoint irrelevant. At that point only the terms of the contract matter. The individual might consider alleging mistake in the sense of Restatement (Second) of Contracts at § 151-154 such that would make the contract voidable and perhaps "make room" for other theories of law. However, that seems futile unless the interim contract contains language that (1) provides specific conditions for its expiration, or (2) reflects the company's [mis-]representations that induced the individual to sign it. Neither seems to have occurred in the situation you describe. There is always a possibility that the contract might favor the individual's position and he just has not noticed it. But the only way to ascertain that is by reading the contract itself.