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Also, the courts will examine the entire context for any series of transactions that seeks to avoid the operation of law. Hence, if it is illegal to export particular goods from X to A, such a law cannot be evaded by entering into back-to-back agreements to export the goods first to Y and then to A.
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disclaiming liability for harm caused intentionally, recklessly or negligently (including liability for any misrepresentation). Liability for personal injuries arising from the use of products can be disclaimed only in rare circumstances (for example, if two merchants fairly bargain for it, and the
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Sometimes, that intention is obvious. On other occasions, it is for the courts to decide whether a sufficient intention can be imputed. Once the intention is established, the evasive manoeuvre is void, and the normal legal provisions will apply to the parties.
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from intentionally and improperly manipulating their behaviour to prevent mandatory provisions in the law from applying to them. As the translated names necessarily imply, the key is an intention to displace the normal operation of the legal system.
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The test of avoidance is whether there is a legitimate purpose for the given behaviour. Many states adopt a "business purpose" test, by decomposing the transaction into its component steps to determine the true purpose of the transaction(s) (see
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in which agreements by the policing authorities to exempt a criminal are prohibited, tax law has a special status as being essential to an organised society in maintaining public trust through the policy of equal treatment in the legal system.
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Nevertheless, a taxpayer who organises affairs to exploit a loophole in the law to avoid the incidence of tax liability will usually be permitted to do so. It is not for the courts to legislate and plug the gaps left by the legislature.
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Some laws are so fundamental that they can never be evaded. Thus, even though the contracts might be perfectly legal, they would be denied enforcement if the effect would be against public policy, such as the following:
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protection of family relationships: an agreement relating to the custody of a child and maintenance cannot exclude the power of a court to examine its terms and to judge whether it is in the best interests of the
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by blood relatives or by persons of the same biological sex only by travelling to and going through a ceremony in a state that allows them. The policies underpinning such laws are so fundamental to the
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to obtain a divorce there and then remarry. She returned to France where she attempted to re-establish herself. Because the divorce was not recognised in France, her remarriage was declared null as a
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must be strictly applied, and it is generally against public policy to allow the tax administration to agree to reduce the amount of tax payable by any individual. Like
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imposed by the law, but no one may evade the operation of otherwise-mandatory provisions if duties and liabilities have been properly imposed or incurred.
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stage, the most usual manipulation involves the way in which the connecting factors are pleaded as between the
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Statement before the Senate
Committee on Foreign Relations, October 21, 2003
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so that inconvenient local laws are evaded in favour of a "foreign" law.
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Although one may legitimately plan affairs to avoid the incidence of
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This article is about the legal doctrine. For the act in ethics, see
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inducing a breach in a contract with a third party;
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