Friendship and its legal implication.
My
father, a devoted mathematician, often reminds me that mathematics is
intertwined with every aspect of life. In response, given our habit of debating
and differing on various topics, I always tell him that everything carries
legal implications. While he views the world through the lens of mathematics, I
see it through the perspective of law.
Today,
I want to talk about friendship and its legal implication and how
the fiends we choose end up affecting us on a daily life. Furthermore, I would
like to explore the reasons why we should particularly legalize friendship.
Let’s
start with contracts. A contract by simple definition its an agreement between
two or more parties. It may be either verbal or written. Also, looking on types
of contracts, when friendship is implicated, we tend to see more of gratuitous
contracts. As any other type of contract, it has some obligations to be
fulfilled even though it’s for one party in that contract.
We
meet with different scenarios in our society where friends under the courtesy
of friendship trust each other and lend each other money, objects like a car.
It is sometimes seen that one party in that agreement breaches the agreement which
is not written anywhere as they agreed as friends, and it becomes a dispute to solve
that particular incident.
The
culture of having written contracts is still low in our society, looking from
the perspective of individuals who are friends, like this friend of mine she
once told me that she can’t lend me money because if I might not pay her she
won’t have the courage to ask me the money. After a small debate about it,
while I was emphasizing that I can pay her back she said that it’s either she
gives me the money gratuitously or she doesn’t. I also added that we can have a
written contract if necessary. The conversation was sparked by how lending
money among friends and how it ruins friendship when one party doesn’t show the
willingness to pay back and it becomes difficult to ask your friend to pay
back.
Ethan
J. Leib a Professor of Law at Fordham Law School in
his article entitled FRIENDSHIP & THE LAW he emphasized on the
central argument that the law needs to do a better job of recognizing,
protecting, respecting, and promoting friendships. The law gives pride of place
to other statuses-family and special professional relationships are obvious
ones--but the status of the friend is rarely relevant to legal decision making
and public policymaking in a consistent way.[1] He
also pointed out that we build within our legal system all sorts of preferences
for family members-for example, the recognition of marriage in our tax law,
spousal testimonial privileges and immunities, and whole areas of criminal law
that privilege family members but we appear not to furnish the status of friend
with any clear legal recognition of consequence. Other relationships of trust
and confidence are recognized by the law both through our regulation of
intimate relationships (e.g., husband-wife, parent-child, and nonmarital
cohabiters) and our protection of special professional relationships (e.g.,
lawyer-client, doctor-patient, priest-parishioner, trustees, and fiduciaries).
But friends seem left to fend for themselves without any possibility for
recourse from a legal system that recognizes their special roles in our lives.[2]
Some
critics might come in a way of saying that everything can’t regulated, but I
strongly believe that everything affecting our daily lives should be regulated.
It is in that line of thinking that I strongly believe that friendship should
be regulated.
Our
friends are deeply implicated in our daily lives, in different circumstances
they can be playing bigger roles in decision making.
In
Rwanda the absence of regulation of friendship is seen in the law governing
persons and family. Surprisingly in article 2
paragraph(x) defines a “person” as a natural person with rights, capacity
and duties.[3]
But the same law did not provide how friendship could be regulated since it
talked about persons while the persons are the ones who are parties in
friendship. And family itself is started by two people who first decided to be
friends.
Before
a family is started the two-dating love birds are friends who are currently
making a lot of promises and sometimes there is breach of confidence. This
reminds me the case scenario in class where the lecture asked us what would be
the effects when one of the fiancés decides to end the whole procedure of
getting married. He continued by elaborating the question by asking us, what
will happen if there are some money exchanged in that process and they can’t be
proven.
Surely
lawyers would take the point of breach of trust, and try to define that as a
verbal contract they had. But the question is how the law can protect the
victims who were affected by acts which were done under the disguise of
friendship?
Aristotle, a 4th century B.C.E. philosopher,
had many things to say about friendship, he defined friendship as
"reciprocal, recognized goodwill". This means that both parties must
feel goodwill for each other, wish each other's good, and be aware of each
other's goodwill. He also classified friendship. Aristotle identified three
types of friendship: utility-based, pleasure-based, and character-based. True
friendship; Aristotle believed that true friendship is only possible between
"good people similar in virtue". In a true friendship, friends love
each other for their own sake, and they wish good things for each other.[4]
Trust; Aristotle believed that trust is a
necessary part of developing a perfect friendship. He advised that friends must
share many meals together before trust is given.
Self-sufficiency; Aristotle valued a balance
between self-sufficiency and dependency in friendship. He wrote that "for
no one would choose to live without friends, even if he had all other good
things".
Accidental friendships; Aristotle observed
that many friendships are accidental, such as business or work relationships,
or friendships based on pleasure. He felt that while these friendships are
necessary, their depth limits their quality.
If
legislators are to regulate friendship, how will they determine reciprocity,
and recognize goodwill as Aristotle
defined friendship?
Elizabeth
Brake, a Professor of Philosophy at Arizona State University, in her article
entitled Why Can’t We Be (Legally Recognized) Friends? She argued that the
legal benefits of marriage, currently extended to same-sex couples, should also
apply to other long-term caring relationships, such as friendships. She
references a case where a 73-year-old American woman was initially denied
residency in Canada, despite being the caregiver and companion of her
83-year-old Canadian friend. The relationship, though not romantic, revealed
the need for legal recognition for non-traditional, non-romantic partnerships.
Although Canada ultimately allowed the woman to stay, this case highlighted the
gap in legal protections for friendships or caregiving partnerships.[5]
Brake
suggests that just as same-sex marriage advocates argued for equal legal
recognition based on the principles of mutual care, those same principles
should extend to any relationship providing long-term support, including
friendships, single mothers co-parenting, or seniors cohabiting. She argues
that relationships should not require romantic or sexual involvement to be
recognized by the state, as the core value of marriage law is to support
stable, caring partnerships.[6]
Brake
contends that political liberalism, which calls for laws justifiable to
citizens across diverse backgrounds, supports this extension of benefits beyond
marriage. The state’s interest in marriage should focus on fostering
relationships of mutual care, rather than privileging romantic or monogamous
ties. Furthermore, caring relationships often require legal support for
practical matters like immigration and hospital visitation, support currently
limited to marriage.
Ultimately,
Brake concludes that extending marriage-like legal entitlements to all
long-term caring relationships would uphold the principles of equality and meet
the practical needs of modern relationships.
The
law not only prevents but it also recognizes, it might be seen that its not necessary
to initiate a specific law on friendship, but in case of future particular
cases that might involve questioning friendship, or friendship becomes a cover
of committing crimes or breaching contracts, legal drafters should not leave a
space for a lacuna.
Legalizing
friendship remains uncommon, no country has specifically legalized friendship
in the sense of granting friendships the same formal legal status as marriage.
However, there are some legal frameworks and policies in certain countries that
allow for benefits traditionally limited to marriage or family relationships to
be extended to non-romantic, non-familial partnerships. Here are a few notable
examples: France introduced the Pacte civil de solidarité (Civil Solidarity
Pact) in 1999 as a form of civil union. Originally aimed at same-sex couples,
PACS is open to any two consenting adults, regardless of gender or romantic
involvement. It provides legal rights related to taxation, inheritance, and
social welfare without requiring marriage, making it an option for close friends,
siblings, or other non-romantic pairs to formalize their relationship for legal
benefits.[7]
The
legal regulation of friendships is typically addressed indirectly, as
friendships themselves are not commonly the subject of laws or legal disputes.
However, the concept can be explored in cases where friendships impact legal
outcomes, such as conflicts of interest, undue influence, or professional
boundaries. United States v. Newman. In this case, friendships between
individuals in the financial sector led to the sharing of insider information,
which was deemed illegal. The court addressed how friendships, if left
unregulated, can lead to unethical or illegal conduct in professional environments.
The case indirectly touches on the regulation of friendships in the context of
insider trading law. Specifically, the relationship between the insider who
tips confidential information and the recipient (tippee) is scrutinized to
determine whether the insider disclosed the information in breach of a
fiduciary duty and for a personal benefit.[8]
The
case illustrates the delicate line insider trading law walks in assessing
whether relationships like friendships are leveraged improperly to gain access
to material, non-public information. The Newman decision stresses that merely
being friends or part of a professional network does not automatically imply
improper conduct unless a clear personal benefit and breach of duty are
demonstrated and known to the parties trading on the information.[9]
I
wish to see more secured friendship, as I know that in the period of disputes
friendship is not even considered. Regulating friendship is a step forward to
have a more promising society where friendship won’t be used to cover up crime
or breaching agreements. It’s up to the legislators to do their jub so as to
prevent the lacuna.
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