More of this Feature • Main Menu • Chapter 1 • Chapter 2 • Chapter 3 • Chapter 4 • Chapter 5 • Chapter 6 • Chapter 7

Join the Discussion Visit Our Message Forum

Related Resources • SSCRA Simplified • SSCRA Resources • Employment Rights • Military Lawyers

Constitutionality and Short Title

This Act may be cited as the Soldiers' and Sailors' Civil Relief Act of 1940.  (50 U.S.C. App. § 501).

The power of Congress to pass legislation as contained in the Act was subject to favorable judicial action shortly after the Civil War.  The 65th Congress also wrestled with the constitutionality of the proposed Act of 1918, but decided in favor of it.  A line of cases from federal and state courts supported this view.

When the current Act was challenged in the case of Dameron v. Brodhead, the Supreme Court held that Congress could pass legislation such as the Act by virtue of its power "to declare war" and "to raise and support armies."

In short, legislation conferring civil relief for members of the military service has survived judicial scrutiny from the days of the Civil War until the present.

The Purpose and Scope of the Act

Section 100

(50 U.S.C. App. § 510)

In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force. 

While not expressing any substantive statutory provisions, Section 100 has been a guide for courts construing the Act.  Whether upholding or rejecting a claim, courts will often include wording of this section or their interpretation of it to give weight to their decisions.  Generally, courts have been favorable to the service member.  The U.S. Supreme Court has declared that the Act must be read with "an eye friendly to those who dropped their affairs to answer their country's call."  A majority of Federal and state courts have construed the present Act and the Act of 1918 in this spirit

A few of those whom the Act is intended to protect will abuse its purpose.  For instance, the Act "may not be employed to enable one who had flouted his obligations in civilian life to obtain indefinite delay."  The Act itself has provided for abuses by not granting protection in those actions in which an "interest, property, or contract" has been transferred merely to take advantage of the Act.  Other cases, however, have indicated the Act is also designed to protect rights of individuals having causes of action against persons in the military service.

While the Act is intended to provide civil remedies, Congress has reinforced the spirit of Section 100 by imposing criminal penalties when failure to comply would thwart equitable civil relief

On the other hand, the Act is not a panacea for every legal problem of a civil nature facing the service member.  It will not, for instance, help rescind a rental agreement or a contract for the purchase of an automobile or a set of encyclopedias entered into after entry onto active duty.  There are a myriad of situations in which the Act will not apply.

The purpose of this publication is to provide guidance to the military lawyer giving initial advice to a legal assistance client.  It may be used to provide the service member with an immediate defense to a potential adversarial proceeding.  In this regard, provisions of Section 100 reinforce arguments based on the provisions of substantive sections.  For the adversary not acting in good faith, however, the local assistant United States attorney may intervene if a criminal penalty is provided.  This guide is intended to be used as a guide and, therefore, should be supplemented by whatever additional legal research is necessary to meet the requirements of the military client.

Notice of Benefits to Persons in and Persons Entering Military Service

Section 105

(50 U.S.C. App. § 515)

       The Secretary of Defense and the Secretary of Transportation, with respect to the Coast Guard when it is not operating as a service in the Navy, shall ensure the giving of notice of the benefits accorded by this Act to persons in and to persons entering military service.  The Director of Selective Service shall cooperate with the Secretary of Defense and the Secretary of Transportation in carrying out the provisions of this section. 

Instruction on the provisions of the Act is required during an early period of military training.  Because this instruction is conducted at such an early stage, legal assistance and preventive law programs should remind service members of the Act on a continuing basis.  Judge advocates should also ensure local bar associations and recruiting stations are sufficiently informed to advise individuals of the Act before they enter active duty.  This will enable prospective service members to invoke the Act in a timely manner.

Next page > Chapter 2 > Page 1, 2

Above Information Courtesy of United States Army JAG Corps