In law, a
declaration ordinarily refers to a judgment of the court or an
awardAn arbitration award is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law...
of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually referred to as a
declaratory judgment. Less commonly, where declaratory relief is awarded by an arbitrator, it is normally called a
declaratory award.
Declaratory relief is most commonly seen in two particular circumstances:
- applications for declarations of legitimacy, in family and probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will...
legal proceedings; and
- under insurance
Insurance, in law and economics, is a form of risk management primarily used to hedge against the risk of a contingent loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for a premium, and can be thought of as a guaranteed and known...
policies, for a determination of whether a perilPeril may refer to:* Peril , an Australian electronic music group* Peril , an Asian Australian arts and culture magazine* USS Peril , an Admirable-class minesweeper...
is covered by a particular policy.
However applications for declaratory relief in other areas have become more widespread, particularly in Europe.
Discussion
Ask a question about 'Declaration (law)' Start a new discussion about 'Declaration (law)' Answer questions from other users |
In law, a
declaration ordinarily refers to a judgment of the court or an
awardAn arbitration award is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law...
of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually referred to as a
declaratory judgment. Less commonly, where declaratory relief is awarded by an arbitrator, it is normally called a
declaratory award.
Declaratory relief is most commonly seen in two particular circumstances:
- applications for declarations of legitimacy, in family and probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A surrogate court decides the validity of a testator's will...
legal proceedings; and
- under insurance
Insurance, in law and economics, is a form of risk management primarily used to hedge against the risk of a contingent loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for a premium, and can be thought of as a guaranteed and known...
policies, for a determination of whether a perilPeril may refer to:* Peril , an Australian electronic music group* Peril , an Asian Australian arts and culture magazine* USS Peril , an Admirable-class minesweeper...
is covered by a particular policy.
However applications for declaratory relief in other areas have become more widespread, particularly in Europe. A key feature in relation to this development have been the
Brussels and Lugano Conventions on civil jurisdiction and judgmentsThe Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving persons resident in a member state of the European Union...
relating to members of the
EEAThe European Economic Area was established on 1 January 1994 following an agreement between member states of the European Free Trade Association ,the European Community , and all member states of the European Union...
. In certain circumstances, jurisdiction is awarded under the conventions to the courts first seised of the matter. This has led to a rise in defendants taking pre-emptive action by seeking "declarations of non-liability" in a
race to the courthouse"Race to the courthouse" is an informal name used to describe the rule in some jurisdictions that the first conveyance instrument, mortgage, lien or judgment to be filed with the appropriate recorder's office, will have priority and prevail over documents filed subsequently, irrespective of the...
to ensure that the they choose the court first seised rather than waiting for the claimant to do so.
Other legal uses
Declaration is used (as a verb or a noun) in other ways in certain legal systems.
- In some legal systems, a declaration is an alternative term for a sworn affidavit
An affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public or commissioner of oaths. The name is Medieval Latin for he has declared upon...
.
- In relation to companies, declaration is the first step in relation to distribution and payment of dividends.
- In trust law
In common law legal systems, a trust is an arrangement whereby property is managed by one person for the benefit of another. A trust is created by a settlor , who entrusts some or all of his property to people of his choice...
, a settlorIn law a settlor is a person who settles property on express trust for the benefit of beneficiaries. In some legal systems, a settlor is also referred to as a trustor, or occasionally, a grantor or donor. Where the trust is a testamentary trust, the settlor is usually referred to as the testator...
who declares that he holds certain propery on trust is said to make a declaration of trust.
- Dying declaration
In the law of evidence, the dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. Case law has ruled out this hearsay exception in many criminal law...
s are an exception to the rule against hearsayHearsay is information gathered by Person A from Person B concerning some event, condition, or thing of which Person A had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of the use of such...
in many legal systems.
- Declarations against interest are also an exception to the rule against hearsay in many legal systems.
- A formal declaration of default is required to enforce creditors' security rights
A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets...
in some legal systems.