A
usage which has acquired the force of law.
When the usage is public, peaceable, uniform, general, continued,
reasonable and certain, and has lasted since time immemorial it acquires the
force of law and is known as a custom. While statute can and does replace prior
custom, statutes must be interpreted in light of custom when there is doubt as
to their meaning: optima est legum interpres consuetudo. A custom derives its
force from the tacit consent of the legislature and the people,
Customs
can be general or particular customs. Particular customs are lex loci
Particular customs are those which affect the inhabitants of some particular
districts only. The common law is an example
of general custom, as is public international law.
Consuetudo.Latin.
Custom; usage; practice.Consuetudo
est altera lex.Custom
is another law.Consuetudo
interpres legum.
Custom
is the expounder of laws.Consuetudo
loci observanda.The
custom of the place is to be conformed to.
-D-Damages,Damages
| Schadensersatz (in Geld) / Schäden
Pecuniary
compensation or indemnity which may be recovered in the courts by any person who
has suffered loss detriment or injury.
A
general term for the remedy of a tort. Normally limited to monetary damages on
a theory of compensation for the injured interest (either as valued by tort
feasor or victim), but may also rely on a theory of retribution,
deterrence/prevention or emotional satisfaction. In its broadest sense damages
can imply remedies other than monetary.There
are a variety of types of damages. The various terms and their meanings are
discussed below:Damages,
Actual | Konkreter Schaden | Indemnisation effective Damages
awarded for calculable material injury; Damages deemed to compensate the
injured party for losses sustained as a direct result of the injury suffered Damages,
Civil / Constitutional tort Injuries
sustained either to one's rights as a citizen of a State and of the United States,
or else to his rights as a member of a family. See: Bivens Claim Damages,
compensation for | Schadensersatz | dommages et intérêts | risarcimento dei danni The
compensation which the law will award for an injury done and thus a synonym for
damages Damages,
Constructive
Those
damages imputed in law from an act of wrong to another person. Such damages are
imputed, i.e. they may or may not be related to the actual damages.Damage,
Compensatory (opp. To punitive damages) | Ersatz eines eingetreten en materiellenn oderim materiellenn) Schadens Ausgleichsentschädigung ? | dommages-intérêts compensatoires / indemnité
compensatrice | premio di compensazione
Compensatory
damages are intended to remedy the actual damages caused by the party against
whom they awarded. Thus compensatory damages are an award of money intended to
be exactly equal to the injury of the victim and nothing more. Yet they may
include the abstract compensation for pain and suffering. Nevertheless
compensatory damages do not include punitive damages (q.v.) .
Damages,
Consequential | Folgeschaden (aus Primärschaden)/ Indirekter Schaden | dommage
consécutif / dommages secondaires / dommage indirect.Those
damages which do not arise immediately out of the plaintiff’s tort but which
nevertheless are caused by the tort.See:
mitigation of damages, pure economic loss.Damages,
Direct | dommage direct Those
damages which arise initially or primarily as a result of plaintiff’s tort. Damage,
Divisible | teilbar Schaden (bei Nebentäterschaft) At
common law where two or more tortfeasors are together the wrongful cause of
plaintiffs injury, the plaintiff would have a cause of action against either
for the entire amount of his or her damages. A possible reform which has not
yet been broadly adopted would be to divide the damage award against each
defendant in proportion to their fault.Damage,
Emotional | Gefühlsschaden See
damages for pain and suffering Damages,
exemplary | Exemplarischer Schadensersatz |
dommages-intérêts exemplaires |
risarcimento danni A
synonym for punitive damages. Exemplary damages are those damages arising out
of the defendant's willful acts where such acts are ere malicious, violent,
oppressive, fraudulent, wanton or grossly reckless. The justification of exemplary damages is primarily punishment of the individual and deterrence of
other individuals but secondarily as a form of compensation. In some cases of
outrageous conduct, e.g. fraud, sexual abuse, or other intentional torts, the
exemplary damages can be much greater than the actual damages.Damages,
General | Ersatz eines immaterial in Schadens | Courants danni generici Those
damages which ordinarily flow from the tortious conduct and thus need not be
specifically pleaded as they are implicit in the plaintiffs complaint. Having
proven the underlying act, the ordinary damages flowing therefrom are presumed,
though such proof may be refuted at least in the case of libel. Though there is
no necessary correspondence between general damages and primary injury and
special damages and consequential damages that correspondence often occurs in
fact. In fact prudence dictates that plaintiff’s plead all damages as special
damages to avoid losing their substantive rights due to the procedural
distinction between general and special damages.Damages
for pain and suffering | schmerzensgeld Injuries
to the plaintiff’s sense of well being; The non material damages to a victim of
a tort which are remedied with money under a theory of compensation Pure
motional damages, where allowed, are generally only allowed to immediate
relatives. However in cases where the defendant is in close proximity to a
violent accident and thus felt themselves in danger pure emotional damages will
be permitted. Further emotional damages for pain and suffering in addition to
and as a result of some substantive material damages will also be allowed. A
damage per se is one wherein damages are presumed upon occurrence of the tort,
e.g. in cases of libel where the libel concerns imputation of crime, a
loathsome disease, the unchastity of a woman, or words affecting the plaintiffs
trade, business or profession. However per se damages may be able to be refuted
by the defendant who will then bear the burden of proof for his affirmative
defense. Damages,
presumed Damages
which do not require proof as they are presumed as a matter of law to result
naturally and necessarily from a tortious act. Damages,
punitive | damages-intérêts punitifs Punitive
damages are those damages awarded in case of willful, wanton, or malicious
conduct. They may even be available in cases of reckless negligence if the
damages are particularly severe or in cases of fraudulent acts. Punitive
damages serve to punish the defendant and deter others. The plaintiff must
prove both the necessity and extent of punitive damages according to the
ordinary standard of a preponderance of
the evidence. Conduct is malicious if it is accompanied by ill will, or spite,
or if it is for the purpose of injuring another. Conduct is reckless if it
reflects a complete indifference to the safety and rights of others.
See:
Wetherbee v. United lns' Co. of America, 18 C.A.3d 266, 95 Cal.Rptr. 678, 680.
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