''In pari delicto (potior/melior est conditio possidentis)'',
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
for "in equal fault (better is the condition of the possessor)", is a legal term used to refer to two persons or entities who are equally at fault, whether the
malfeasance
Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute.
The Carta de Logu caused Eleanor of Arborea to be remembered as one of the first lawmakers to set up the ...
in question is a crime or
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
. The doctrine is subject to a number of exceptions, including that the plaintiff must be an active, voluntary participant in the wrongful conduct, the plaintiff's wrongdoing must be at least substantially equal to or greater than that of the defendant,
[James M. Fischer (2010)]
''Understanding Remedies, ''
. the "adverse interest" exception, and the "innocent insider" exception.
The doctrine
The phrase is most commonly used by courts when relief is being denied to both parties in a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
because of equal wrongdoing by both parties, or greater culpability on the part of the plaintiff.
The phrase means, in essence, that if both parties are equally at fault or the plaintiff is at greater fault, the court will not involve itself in resolving one side's claim over the other, and whoever possesses whatever is in dispute may continue to do so in the absence of a superior claim.
It is an equitable defense.
The doctrines of
comparative fault (a doctrine of tort law that compares the fault of each party in a lawsuit for a single injury) and
contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
(applicable when plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered) are not the same as ''in pari delicto'', though all of these doctrines have related policy rationale underpinnings.
Exceptions to the doctrine
Judge
George B. Daniels of the
Southern District of New York
The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...
held in 2010 in ''SEC v. Lee'', 720 F. Supp. 2d 305, that:
"To successfully apply the doctrine, the plaintiff must be an active, voluntary participant in the wrongful conduct, and the plaintiff's wrongdoing must be at least substantially equal to that of the defendant.... Furthermore, under New York law, the doctrine of in pari delicto may be subject to the "adverse interest" exception, which applies when an agent is defrauding the principal exclusively for the agent's own benefit and to the detriment of the corporation.... Another exception to the in pari delicto defense is the "innocent insider" exception, which provides that if there is another agent within the corporation who had no knowledge of the fraud, and who had the will and the ability to stop the fraud had it come to his or her attention, the in pari delicto defense will fail..."
See also
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Equitable remedy Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VIII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.
Equitable remedies were gra ...
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Equity (law)
Equity is a particular body of law that was developed in the English Court of Chancery. Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a cas ...
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Nemo auditur propriam turpitudinem allegans
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Pot calling the kettle black
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Tu quoque
(; Latin , for "you also") is a discussion technique that intends to discredit the opponent's argument by attacking the opponent's own personal behavior and actions as being inconsistent with their argument, therefore accusing hypocrisy. This ...
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Unclean hands
References
{{DEFAULTSORT:In Pari Delicto
Latin legal terminology
Legal doctrines and principles