Monday, June 05, 2006

Undocumented Workers and the Legal Concept of Acting in Reliance

reliance n. acting upon another's statement of alleged fact, claim, or promise. In contracts, if someone takes some steps ("changes his position" is the usual legal language) in reliance on the other's statement, claim or promise then the person upon whom the actor relied is entitled to contend there is a contract he/she can enforce. However, the reliance must be reasonable.

This is the legal definition as found here. The definition leaves out the fact that one might also find their contract rights have been diminished or eliminated by their failure to act. This is why you find language in any good contract that requires a writing to change the contract. However, these words do not absolutely end the rights of a defendant who has acted in reliance on the failure of plaintiff to enforce elements of the contract.

For example, a landlord might include in a lease that the tenant may not have a dog. The tenant gets a dog anyway. The landlord learns of the dog and does nothing to enforce that term of the lease. Five years later, the landlord decides to enforce the claim in hopes of forcing the tenant out. The landlord may have given up his right.

Sound anything like what we are dealing with in the immigration debate? For those who went to USC, and don't see the connection, local, state, and the the national government have all failed to enforce laws dealing with immigration. In many cases this failure has been overt, with governments specifically stopping law enforcement from doing anything to arrest or deport illegal immigrants, even when caught for another crime.

The community at large has been very welcoming of these people, hiring them to take care of their children, infirm adults, lawns, etc. This lack of enforcement and overt approval has led individuals to make decisions related to their lives that are very significant such as buying homes, getting married, starting businesses, making investments, and so on. When judges evaluate the reliance defense, equity requires that the harm to both parties be considered in deciding whether to now enforce the contract or whether the harm to the defendant would be much greater than the harm to plaintiff, and thus that aspect of the contract is void.

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