Declaratory Judgment in the United States, 37 West Virginia Law Quarterly 127 (1931)
The common law and other legal systems long professed the assumption that it was necessary to commit physical damage or injury (a wrong) or to threaten an immediate injury, before the protection of the courts could be invoked by the person requiring
judicial protection. It was apparently not sufficiently realized that rights may be impaired and disturbed and injuries suffered by the mere assertion of claims which throw rights into doubt, uncertainty, and jeopardy. So the mere unfounded assertion that a person is married or unmarried, illegitimate, insane; the mere fact that title to property is challenged; the mere fact that disputes exist as to the construction of instruments, such as contracts, deeds, leases, will, etc., create situations which endanger or impair rights and which, in order to prevent even greater damage, require clarification and determination. The private interests the freedom of action or disposition and the social equilibrium are both disturbed when rights are thus endangered or impaired by unfounded claims. Indeed, the courts of equity have long recognized that an action lies to quiet the title to property if the title is challenged; and statutes have given a right of action to conflicting claimants, both of real and personal property. So actions are allowed to have a void marriage or void instruments so declared and to construe wills.
Date of Authorship for this Version
Protection, title, property, contracts, deeds, leases, freedom, justice, constitutionality
Borchard, Edwin, "Declaratory Judgment in the United States" (1931). Faculty Scholarship Series. Paper 3432.
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