{"id":15564,"date":"2018-03-14T03:16:26","date_gmt":"2018-03-14T03:16:26","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=15564"},"modified":"2018-03-15T15:17:41","modified_gmt":"2018-03-15T15:17:41","slug":"extrajudicial-remedy","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=15564","title":{"rendered":"Extrajudicial Remedies – may be obtained without a court:"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Civil Law Self-Help<\/a> >>>> Section 3:<\/a>\u00a0Which form(s) of relief are you seeking from the court to help remedy the situation?<\/a><\/em> >>>> <\/em>Remedies<\/a>:<\/span>
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extrajudicial<\/span>:<\/span><\/strong><\/p>\n

1. That which occurs aside from or independent of the court or of judicial action outside of the court’s jurisdiction; outside of the courtroom.<\/strong> [1]<\/span><\/p>\n

1. Aside from or without the intervention of a court; outside of the court’s jurisdiction.<\/strong> [2]<\/span><\/p>\n

extrajudicial remedy<\/span>:
\n<\/strong>(18c)<\/span><\/p>\n

1. A remedy not obtained <\/strong>from a court, such as repossession. <\/strong>\u2014 aka self-help remedy<\/strong><\/em><\/span>. [3]<\/span><\/p>\n

self-help<\/span>:<\/span><\/strong>
\nn<\/em>. (1831)<\/span><\/p>\n

1. Taking matters into one’s own hands, i.e., obtaining a remedy without recourse to legal process.\u00a0 (EXAMPLE under the Uniform Commercial Code, a secured party has the right to take possession of the collateral in the event of default.)\u00a0 However, self-help is a doctrine of extremely limited application.<\/span><\/strong>
\n\u00a0\u00a0\u00a0\u00a0 See also necessity. <\/em>[1]<\/span><\/p>\n

1. A controverted doctrine in reference to escaping from the custody of an officer which is unlawful. 27 Am J2d Escape \u00a7\u00a7 7, 12<\/span>.<\/strong> <\/span>
\n\u00a0\u00a0\u00a0\u00a0 See self-preservation<\/em>. [2]<\/span><\/p>\n

1. An attempt to redress a perceived wrong by ones’ own action rather than through the normal legal process.\u00a0 *\u00a0 The UCC and other statutes provide for particular self-help remedies (such as repossession) if the remedy can be executed without breaching the peace. UCC \u00a7 9-609.<\/strong> \u2014 aka self-redress<\/strong><\/em><\/span>; extrajudicial enforcement<\/span><\/strong><\/em>.\u00a0 Cf claim-of-right defense<\/em> under DEFENSE (1). [3]<\/span><\/p>\n

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necessity<\/span>:<\/span><\/strong><\/p>\n

1. That which is necessary; that which must be done.<\/span><\/strong>
\n\u00a0\u00a0\u00a0\u00a0 See certificate of need<\/em>; way of necessity<\/em>; work of necessity<\/em>.<\/span><\/p>\n

2. That which is compelled by natural forces and cannot be resisted.\u00a0 necessity is a defense in a criminal prosecution if the defendant committed the crime to prevent a more serious harm from occurring.\u00a0 EXAMPLE: reckless driving by a driver, to avoid the gunshots of officers who are attempting to make an unlawful arrest, may not be a crime.<\/strong> [1]<\/span><\/p>\n

self-help doctrine<\/span><\/a> – an attempt to redress a perceived wrong by one’s own action rather than through the normal legal process.<\/strong>\u2014 aka self-redress<\/strong><\/em><\/span>; extrajudicial enforcement<\/strong><\/em><\/span>.\u00a0 UCC \u00a7 9-609<\/a>.<\/strong><\/span><\/p>\n

self-preservation<\/span>:<\/span>
\n<\/span><\/strong>Int’l law<\/em><\/span>.<\/span>
\n<\/span><\/strong><\/p>\n

1. The instinct of protecting one ‘s self against danger.\u00a0 The desire to live; the instinct which generally prompts men to acts of care and caution when approaching or in the presence of danger. Wabash R. Co. v De Tar<\/em> (CA8 Iowa) 141 F 932<\/span>.<\/span><\/strong><\/p>\n

The instinct from which the presumption of the care of one’s own protection arises. 38 Am J1st Negl \u00a7 337<\/span>.<\/strong> [2]<\/span><\/p>\n

1. The right of a state to engage in unilateral action in response to a compelling need to allow the state to endure in one form or another.\u00a0 *\u00a0 Although self-preservation is often equated with military action, it need not entail the use of military force.<\/strong><\/span><\/p>\n

2. The unilateral action itself. <\/span><\/strong>[3]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from James A. Green’s “Self-Preservation,” in 9 The Max Planck Encyclopedia of Public International Law<\/em><\/a> 128, 129 (R\u00fc<\/span>diger Wolfrum ed., 2012):<\/span><\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0 “In its narrowest form, the term ‘self-preservation’ has been used as\u00a0 synonym for the concept of necessity…. In this incarnation, self-preservation constitutes a unilateral action taken in response to a situation of ‘grave and imminent peril’ affecting the ‘essential interests’ of the responding State…. This allows for States to preclude the use of military force against States that were not themselves necessarily in breach of international law, to secure the interests of the invoking State.\u00a0 More commonly, self-preservation has been employed in a broader sense; this is an interpretation that includes the concept of necessity, but is not limited to it.\u00a0 therefore, self-preservation is perhaps best understood as an ‘umbrella’ term.\u00a0 it should be seen as a label that encompasses a range of concepts that all possess a good deal more specifically under contemporary international law than self-preservation does itself.\u00a0 Traditionally, then, self-preservation has encompassed the following legal concepts: self-defence, counter-measures (either in te form of reprisals or self-help) and necessity.<\/span>” <\/strong>[4]
\n<\/span><\/p>\n

References:<\/span><\/span><\/strong><\/p>\n

Disclaimer:<\/span><\/span><\/strong> All material throughout this website is compiled in accordance with Fair Use<\/a>.<\/span><\/strong><\/p>\n

[1]: [3]:\u00a0\u00a0Ballantine\u2019s Law Dictionary <\/a>Legal<\/b><\/a><\/em> Assistant<\/b><\/a><\/em> Edition<\/b><\/a><\/em>
\nby Jack Ballantine\u00a0(James Arthur 1871-1949).\u00a0\u00a0<\/em>Doctored<\/a>\u00a0<\/em>by\u00a0Jack G. Handler,\u00a0J.D.<\/a>\u00a0\u00a9 1994 Delmar by Thomson Learning.\u00a0 ISBN 0-8273-4874-6.<\/span><\/strong><\/p>\n

[2]: Ballantine\u2019s Law <\/a><\/span><\/strong>Dictionary\u00a0<\/b><\/span><\/a><\/strong>with<\/b><\/span><\/a><\/em> Pronunciations<\/b><\/span><\/a><\/em> Third Edition<\/a>\u00a0by James A. Ballantine\u00a0<\/span><\/strong>(James Arthur 1871-1949).\u00a0\u00a0<\/span><\/em>Edited by William S. Anderson.\u00a0\u00a0\u00a9 1969 by THE LAWYER\u2019S CO-OPERATIVE PUBLISHING COMPANY.\u00a0 Library of Congress Catalog Card No. 68-30931<\/span><\/strong><\/p>\n

[3]: Black’s Law Dictionary <\/a><\/strong>Deluxe<\/b><\/a><\/em> Tenth<\/b><\/a><\/em> Edition<\/b><\/a><\/em> by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4 <\/strong><\/p>\n

[4]: James A. Green’s “Self-Preservation,” in 9 The Max Planck Encyclopedia of Public International Law<\/em><\/a> 128, 129 (R\u00fc<\/span>diger Wolfrum ed., 2012).<\/span><\/strong><\/p>\n

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