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Suppose that I and a friend of mine are interested in resolving a particular legal hypothetical within the realm of civil law. The exact details are not important here, but no party of the hypothetical has a liability except to each other -- say, it's a breach of contract between the two parties, or a copyright violation.

Suppose then that my friend and I actually set up the hypothetical in real life -- we enter the contract, and then one of us violates the contract in exactly the way we discussed. The other one of us starts a lawsuit, we each get a lawyer, etc. Neither of us reveals that this case was deliberately set up by us to answer the question, at least not until such a question is asked directly.

To which stage of the judicial process would such a case go? Could it go to trial? My intuition tells me that if it becomes known that we have colluded in this manner, the case will be thrown out for lacking consideration. Thus, it will stop at or near the discovery process, as it will become clear that no damages have been incurred by either of us.

This is related to How can we resolve a bet on a question of law? -- the difference is that here, we have created the material dispute to go to court about. It is also related to Can a contract to kill help someone avoid murder charges? but in that case there is criminal liability involved, and criminal cases have the prosecution represent the interests of the state.

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    It occurs to me that one could answer this question by doing just this... – Studoku Nov 17 '20 at 22:38
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    This actually happens. – Kevin Nov 17 '20 at 22:51
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    @Kevin none of the cases in the page seem to have been brought through an agreement between the parties to cause the legal issue. I certainly can assume than in the OPs case the court could rule that since the purpose of the contract was not to fulfill it but to breach it, then the contract was invalid and there is no case to judge. – SJuan76 Nov 18 '20 at 0:05
  • @SJuan76 "the purpose of the contract was not to fulfill it but to breach it" -- how about the other example I'm giving, that of a copyright case? I originally thought of this question when thinking about this copyright question, and it occurred to me that it's possible to try and resolve this by setting it up IRL. I think that a copyright dispute would be different, because there is at least some degree of public interest involved in whether some artistic work remains accessible to the public or not, and this might change the case considerations. – Danya02 Nov 18 '20 at 8:47
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Probably Not

From the Uniform Civil Procedure Rules 13.4

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

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It isn't that uncommon to do something similar to this, which is called a "test case". One of the more familiar examples of this kind of litigation conduct is the case of Plessy v. Ferguson.

There have been test cases, for example, that involved important questions of E.U. jurisdiction in civil law countries as well.

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  • It might be a kind of a test case but isn't it a waste of the courts time and possibly worse to generate a fake dispute? – George White Nov 19 '20 at 2:35
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    @GeorgeWhite I would describe it as an artificial solution to an artificial solution. The U.S. and most common law court systems have a prohibition against granting declaratory judgment in the absence of an actual case or controversy, and that it is a constitutional jurisdictional limitation in the case of federal courts. But lots of countries allow declaratory judgments to be entered in the absence of an actual case or controversy, and ginning a controversy up to resolve the issue doesn't seem to terribly problematic. The fear is not a waste or time or fake dispute, but a collusive precedent. – ohwilleke Nov 19 '20 at 2:40

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