Thursday, December 27, 2007
The blogging Knight, or " My estoppel will cut your nuts off if you give me any trouble..."
Have you ever started a post without a clue as to what you plan to write about? I opened this up without thinking, once I'd read everyone's blogs, checked my emails, both work and personal, and put some music on. Hmm, subconsciously preparing to blog. I assume that my subconscious mind opened this post because it has something it desperately wants to convey to you................................and I'm waiting for it to take over and do the deed........................
Nada, my subconscious is pulling a classic, turtle head maneuver. I'm not impressed. Nor do I have anything relevant, witty, or interesting to say, myself. In fact, I'm listening to Mozart's piano concerto no. 20 and it's very nice wake up music. Makes me want to drift off for a nap and I may just do that for 10 minutes, or so...
Ok, waking up to his majesty's symphony No. 40 in G-minor, I read an intellectual property copyright on one of my work documents, as sort of manual for powering my system on and off. Therein lie the following statements:
No part of this publication may be reproduced, transmitted, blah, blah...translated into any language, or computer language in any form or by any means electronic, mechanical, magnetic, optical, chemical, maunal, or otherwise...blah, blah, blah... OR OTHERWISE? As if electronic, mechanical, magnetic, optical, chemical and manual don't cover the bases! What other methods do we use to reproduce, or store information? I must have missed a few emerging technologies..then I read:
Each individual document published by (Large Corporation X) may contain , blah, blah, blah.....as conferring by implication, estoppel, or otherwise....
So, I have to look up the word estoppel. It's like getting a new tool for Christmas. you want to go build something with it, right away. This Christmas I built our new wine rack with the screwdrivers my son gave me. So, off to Wikipedia to check out my new tool...is it a hammer, or a saw, clamp, or perhaps a wrench to tighten up my prose-I can't wait! and this is what I find:
Estoppel is a legal doctrine recognised both at common law and in equity in various forms. It is meant to complement the requirement of consideration in contract law. In general it protects a party who would suffer detriment if:
* The defendant has done or said something to induce an expectation
* The plaintiff relied (reasonably) on the expectation...
* ...and would suffer detriment if that expectation were false.
Unconscionability by the defendant has been accepted as another element by courts, in an attempt to unify the many individual rules of estoppel.
Estoppel is generally only a defense that prevents a representor from enforcing legal rights, or from relying on a set of facts that would give rise to enforceable rights (e.g. words said or actions performed) if that enforcement or reliance would be unfair to the representee. Because its effect is to defeat generally enforceable legal rights, the scope of the remedy is often limited. Note, however, that proprietary estoppel (applicable in English land law) can be both a sword and a shield and the scope of its remedy is wide.
A sword and a shield!! and the scope of it's remedy is wide. HA! Leave a nasty comment on here and I'll cut you!
Yep, another tool in the tool box and this time it's a sword and a shield. This is why they say the pen is mightier than the sword-cause it's a shield, too. I'm now an armed and shielded knight among bloggers...to my steed and away to slay yon dragon with my estoppel!