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Semelhante a Legal concepts and definitions of legal terms
Semelhante a Legal concepts and definitions of legal terms (14)
Legal concepts and definitions of legal terms
- 1. Rule of Thumb Definitions of Common Legal Terms
- 15. Material Important Necessary Having influence or effect An issue in a contract which is substantial
- 23. The answer is it depends.
- 24. A phrase used which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and "we mean it." Therefore any delay-reasonable or not, slight or not-will be a breach of the agreement. Time is of the Essence
- 26. May, Will & Shall Shall Will May xxx
- 27. Contractor (shall, will, may) immediately discharge, or otherwise cause to be removed any lien, which (shall, will, may) be filed in connection with the Work. May, Will & Shall xxx
- 28. Contractor (shall, will , may) immediately discharge, or otherwise cause to be removed any lien, which (shall, will, may ) be filed in connection with the Work. In the first instance, could we have said “shall”? May, Will & Shall xxx
- 31. The failure of one party to carry out any condition of a contract. A material breach of a contract always gives rise to an immediate cause of action for breach of the entire contract because it goes to the heart of the contract itself. Breach
- 32. Example: Marina agrees to sell Ursula her car for $1500. When Ursula takes possession, she discovers that the car is totally broken down and does not meet the contract specifications. This is a breach of the entire contract, giving Ursula the right to sue for the full purchase price. On the other hand, if when Ursula takes possession of the car, she discovers that only the radio doesn’t work. Although the contract specified that the car was in perfect working order, this is only a minor breach, because replacing only the radio is basically insignificant. In this case, Ursula has a cause of action against Marina for the cost of replacing the radio, but the contract is still valid and enforceable. Breach
- 33. What factors determine whether a breach is material or minor? There is no set standard, but generally the courts look at the intent (i.e.the anticipated outcome) of the parties, the words used in the contract, the degree of hardship the breach imposes, and the extent to which the injured party can be compensated. As a general rule, if any portion of a contract is deemed to be of special importance to one of the parties, it should be identified in the contract as a “material” clause. One such example would be a “time of the essence” clause. Breach
- 34. Example. A couple is divorced The husband is contractually obligated to pay child support. The wife moves cross country with the kids in breach of the agreement, and the husband, in protest, stops paying child support. Who should the court hold in breach and why? Breach
- 35. Cure The act of healing. If you are accused of breaching a contract, and you cure the breach, it means you are no longer in breach.
- 38. Punitive Damages Money awarded by the court that is intended to punish a party rather than to reimburse the other party for any specific loss.
- 39. Punitive Damages Example: Nancy is induced to buy a table from Ethan for $500. Ethan is an antique dealer, and although he claims that it is an antique, he knows that the table is not. Because a fraud is involved as well as a breach of contract, is Nancy entitled to punitive damages?
- 40. Damages Punitive Damages (Punish and deter) Compensatory Damages (Make the party “whole”) Nominal Damages (Vindication but no money)
- 41. Indirect Damages or Consequential Damages Are damages to people associated with injured party or damages that happen as a consequence of the injury. (e.g. loss of consortium, loss of household services, loss of guidance, cost of caring for injured party, emotional suffering of others) Direct Damages Direct Damage are damages to injured party. Damages which come about naturally or ordinarily from breach of the contract are direct damages. (e.g. lost wages, future earning capacity, medical bills, disability, pain, emotional suffering)
- 44. Negligence, Gross Negligence, or Willful Misconduct?
- 45. Negligence, Gross Negligence, or Willful Misconduct?
- 46. Negligence, Gross Negligence, or Willful Misconduct?
- 47. Negligence, Gross Negligence, or Willful Misconduct?
- 48. Negligence Intentional Misconduct Reckless Misconduct Willful Misconduct Gross Negligence Negligence
- 49. Negligence
- 50. Subrogation In our Agreements we say: 1) Worker’s Compensation, as prescribed by any applicable statute, endorsed to waive subrogation against Chiron for any claim arising out of the performance of this contract. This means that in Worker’s Compensation cases, we want the insurance company for a worker making a claim to give up the right to subrogation.
- 55. Example from a contract: PROCESS. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE. LENDER MAY IN ITS SOLE DISCRETION, ELECT THE STATE OF NEW YORK, NEW YORK COUNTY, OR THE UNITED STATES OF AMERICA, FEDERAL DISTRICT COURT HAV1NG JURISDICTION OVER NEW YORK COUNTY, AS THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING Jurisdiction/Venue
- 56. Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. Under certain circumstances, the courts of a particular legal jurisdiction will be called upon to apply the law of a different jurisdiction. This usually arises in the context of lawsuits arising from torts or contracts. Choice of Law
- 57. A formal command or admonition A judicial remedy issued in order to prohibit a party from doing or continuing to do a certain activity; "injunction were formerly obtained by writ but now by a judicial order" Injunction
- 58. Termination Clause Termination clauses ensure that either or both parties have the right to terminate the contract under certain circumstances. Generally, termination clauses describe breach of contract events that trigger the right to terminate the contract (for example, nonpayment of royalties). Termination clauses also describe the methods of giving notice of exercise of the termination right, and whether the breaching party must be given an opportunity to cure the breach before the other party can terminate the contract.
- 59. The intentional and voluntary giving up of something, such as a right, either by an express statement or by conduct. The problem which may happen is that a waiver may be interpreted as giving up the right to enforce the same right in the future. Example: the holder of a promissory note (a legal document which the borrower must sign to get a loan) who several times allows the debtor to pay many weeks late does not agree to waive the due date on future payments. A waiver of a legal right in court must be expressed on the record. Implied/Expressed waiver
- 60. Referring to having an absolute right or title, when previously the holder of the right or title only had an expectation. Example: after 20 years of employment Larry Loyal's pension rights are now vested. Vested
- 61. Termination Clause Termination clauses ensure that either or both parties have the right to terminate the contract under certain circumstances. Generally, termination clauses describe breach of contract events that trigger the right to terminate the contract (for example, nonpayment of royalties). Termination clauses also describe the methods of giving notice of exercise of the termination right, and whether the breaching party must be given an opportunity to cure the breach before the other party can terminate the contract.
- 63. Indemnity is generally a payment or compensation for damages done. For example, after wars, the losers have sometimes been required to pay indemnities. Indemnity
- 65. The act of transferring an interest in property or some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property. Assignment
- 66. The holding of funds, documents, securities, or other property by an impartial third party for the other two participants in a business transaction. When the transaction is completed, the escrow agent releases the entrusted property. Escrow
- 67. Only the parties to a contract can be sued on it. The doctrine of privity says that a contract can only be enforced the parties to that contract. Privity
- 68. For example, a tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the contract between seller and buyer since the tenant was not "in privity" with the seller. Dunlop v Selfridge (1945) The issue put to the court was whether Dunlop can get damages from Selfridge without a contractual relationship. Privity
- 72. Moveable items of property which are neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property. A piano is chattel but an apartment building, a tree or a concrete building foundation is not. The opposite of chattel is real property which includes lands or buildings. All property which is not real property is said to be chattel Chattel Articles of personal property such as household goods, furnishings, and fixtures that are not permanently affixed to the house
- 73. Power of Attorney A power of attorney is a document that allows you to appoint a person or organization to handle your affairs while you're unavailable or unable to do so. The person or organization you appoint is referred to as an "Attorney-in-Fact" or "Agent." General Power of Attorney - authorizes your Agent to act on your behalf in a variety of different situations. Special Power of Attorney - authorizes your Agent to act on your behalf in specific situations only. Health Care Power of Attorney - allows you to appoint someone to make health care decisions for you if you're incapacitated. " Durable" Power of Attorney -The general, special and health care powers of attorney can all be made "durable" by adding certain text to the document. This means that the document will remain in effect or take effect if you become mentally incompetent. Revocation of Power of Attorney - allows you to revoke a power of attorney document .
- 74. A fiduciary is a person who occupies a position of trust in relation to someone else. This person is required to act for the other person’s benefit. In business or law, it generally means someone with a particular professional or role, e.g., investment advisor or trustee. A fiduciary relationship must also have a dramatic difference in power between the two parties: one party having a great deal more expertise. A fiduciary owes a duty of "utmost good faith". Fiduciary
- 76. Common Law There are two meanings for Common Law in regular use. First, `common law' is used to mean the body of law in any legal system in which decisions of the judiciary become, over the years, new laws (`judge-made law'). In our country, the term is mostly used this way. In England, the term was originally used to mean the uniform set of laws that apply to England and Wales, derived from custom and practice by judges.
- 77. Equity Literally `fairness'. In mediaeval times, people could petition the King for redress in cases that could not be dealt with adequately in the common law as it then stood. Equity is the name given to the whole area of the legal system in countries following the English common law tradition that resolves disputes between persons by principles of fairness and justness. Equity comes into play typically when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict. Thus, it is to be contrasted with "law,", the laws enacted by governments, and the “case law" (the principles set forth in courts' opinions deciding cases).
- 78. Settlement An agreement between the parties disposing of a lawsuit The majority of cases are decided by a settlement. Both sides often have a strong incentive to settle to avoid the costs associated with a trial, particularly where a trial by jury is available. Generally, one side or the other will make a settlement offer early in litigation.
- 79. Merchantability Merchantability means that the article sold shall be of the general kind described and reasonably fit for the general purpose for which it shall have been sold, When the article sold is ordinarily used in but one way, its fitness for use in that particular way is impliedly warranted unless there is evidence to the contrary. .
- 81. A legal restraint that stops or prevents a person from contradicting or reneging on his previous position or previous assertions or commitments. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel). Equitable term; the doctrine bars certain actions in the interest of fairness Estoppel
- 82. Incorporate by Reference/Attached Hereto
- 83. The term "rule of thumb" or similar exists in many languages and cultures. Its likely origin is that the thumb is often used for rough measurement by carpenters, seamstresses, artists and many others. In fact, the measurement of an inch is believed to have been derived from the distance between the tip of the thumb and the first joint.
Notas do Editor
- Offer : An indication of willingness to sell at a given price; opposite of bid. Acceptance: To agree to the terms and conditions of an offer contract. Promise to Perform : A transaction between two persons whereby the first person undertakes in the future to give some service or gift to the second person or devotes something valuable now and here to his use. A notable type of promise is an election promise. Consideration is the subject matter of the contract; it is the thing for which the parties have bargained. Most people assume consideration to be the price, but that is not completely accurate. Although money may be part of the bargain, it is not always the complete bargain. Nor is money itself always necessary. The crucial aspect of consideration is that each party both gives and receives consideration. Each must give something of value. There are also some criteria that makes a contract enforceable such as: Legality of subject matter Contractual capacity c. Contractual intent Offer and acceptance analysis is a tool in contract law used to determine whether a contract exists between two parties. An offer is an indication by one person to another of their willingness to contract on certain terms without further negotiations. A contract is then formed if there is express or implied agreement.
- Unilateral Contract A unilateral contract is one in which there is a promise to pay or give other consideration in return for actual performance. (I will pay you $500 to fix my car by Thursday; the performance is fixing the car by that date.) Bilateral Contract A bilateral contract is one in which a promise is exchanged for a promise. (I promise to fix your car by Thursday and you promise to pay $500 on Thursday.)
- A contract can be verbal, as long as it meets the criteria of: offer, acceptance, promise, consideration
- A covenant is defined as an unconditional, absolute promise to perform. It is the contractual promise to which no conditions are attached. If a party fails to fulfill his contractual covenants, it is deemed to be a breach, or violation, of the entire contract.
- When analyzing any contract, these two separate elements must be specifically determined: one, what has been promised in the contract, and two, at what point does that promise become enforceable in a court of law. A condition is a fact or event, the happening or nonhappening of which creates an duty to perform.
- The question is: "How would a reasonable person act under the circumstances" performs a critical role in legal reasoning in areas such as negligence and contract law. What is a legal fiction? In the common law , legal fictions are suppositions of fact taken to be true by the courts of law , but which are not necessarily really true. They typically are done to evade archaic rules of procedure or to extend the jurisdiction of the courts in ways that were considered useful, but not strictly authorized by the old rule. A legal fiction is something assumed in law to be fact irrespective of the truth or accuracy of that assumption [the legal fiction that a day has no fractions - Fields v. Fairbanks North Star Borough, 818 P.2d 658 (1991)]
- The material terms for any contract includes specific contract language covering the subject matter, payment terms, quantity, quality, duration, and the work to be done. A valid and enforceable contract must contain at a minimum the following terms. Subject Matter -- a description of the work, and if possible a tentative title, would satisfy this requirement. (2) Payment Terms (3) Quantity and Quality – (4) Duration (5) Work To Be Done -- this requirement would be satisfied by the clauses describing the author's delivery of the manuscript to the publisher and the publisher's obligation to publish the manuscript.
- A statement in a contract which ensures that all dates and times noted are important and cannot be ignored.
- Contractor will immediately discharge, bond over or otherwise cause to be removed any lien, which may be filed in connection with the Work.
- Contractor will immediately discharge, bond over or otherwise cause to be removed any lien, which may be filed in connection with the Work.
- In law , a warrant can mean any authorization .
- One argument says if the wife breached the contract first, why should the husband abide by it? Further, who would be willing to give money to someone like that, and what guarantee is there that the money will actually be used to benefit the kids, rather than buy a plane ticket out of there? Second argument: The only way you would have to get permission to skip making child support payments is to show that the custodial spouse skipped town and left no forwarding address. Even then it is likely that the Court would require you to make the child support payments into a segregated bank account for the benefit of the child (or children) you are supporting. Your sole remedy for a breach of the agreement by the other spouse is for you to go into court and have the other spouse held in contempt.
- Types of Damages Nominal - vindication but no money Preserve the verdict Can trigger attorney's fees Punitive - punish and deter Blurs torts and criminal law Either unbounded or bounded Policy question - insurable? no insurance - no recovery for plaintiff insurance - no punishment for defendant current controversies sexual assault by lawyers and doctors limited potential recovery without insurance unjustly punish honest practitioners through risk sharing Compensatory - "make the plaintiff whole" Reduce plaintiff's claims to money Non-wage claims Currently tax-free Lump sum of periodic payment Elements of damages past and future Past is certain Future is speculative Direct and indirect direct is to injured plaintiff indirect to persons associated with plaintiff Direct damages All have severity and time components All terminate with death of plaintiff Lost wages Lost wages - past Lost wages - future fixed wage until retirement persons with no career opportunities persons topped out in their career loss of future earning capacity persons with prospects depends on position on the life curve age 0 - nothing age 10 - star or punk / still limited age 18 - good record/good college age 25 - job with future or graduate school age 30 - job progression or completing school age 40 - starts to peak age 50 - definitely set age 60 - plateau age 65+ - downhill slide depends on job pediatrician - 100,000 cardiac surgeon - 1,000,000 college professor - 40,000 - 250,000 depends on expected length of career sure dollars at 60 but limited years speculative at 30, but lots of years integral under the curve Medical bills Past who paid them? gifts of services inures to the plaintiff includes transportation and accommodation Future custodial care - big bills know future needs surgery for burn victims revisions for growing children potential future needs traumatic arthritis failing joint replacements complications of adhesions Disability in addition to effect on wages interference with daily life sports and hobbies playing with the kids caring for one's self sexual function impairment of reproductive potential childbearing capacity sterility, male or female Hedonic damages - death as the ultimate disability an extra kicker for all the fun you miss by being dead. Natural extensions quantum meruit for killing miserable plaintiffs no recovery for people who believe in an afterlife. Disfigurement Minor Cosmetic impairment You make the case - young, old, pretty, plain, male, female, married, etc. Substantial impairment - o-my-god test original status almost irrelevant usually burns sometimes avulsion (road rash) Can relate back to wages Especially a problem for children Pain Past generally judged on severity of injury Future Question of accommodation Extent of possible mitigation Hard to prove Must be conscious of suffering Emotional suffering Helped by physical stigmata Hurt by whining Indirect damages Parameters are closeness of relations and number of relations Clean kills of lonely orphans are free Loss of consortium - historically spouses sexual services companionship should it terminate on remarriage/reassociation? should remarriage be admissible? Loss of household services Husband or wife Cooking, cleaning, fixing the furnace Cost of contracting services Potential substraction of room and board costs Loss of guidance and counsel death of grandparents and persons with non-dependent children must show close relationship Personal costs of caring for plaintiff loss of outside income necessary costs not covered by direct damages Emotional suffering Concern about plaintiff Inconvenience caused by plaintiff Possible direct damages if in "zone of danger" Collateral source rule defendant should not benefit from plaintiff's foresight and frugality amounts to paying "double" in some cases not a constitutional issue - can abolished by statute key to the "tort problem" with national health and disability insurance you could collateral source most of the damages in tort cases - this is the heart of the lack of tort law in the rest of the civilized world. Net present value present worth tables cost of annuity fight about assumptions periodic payments guaranteed return and kickers can be pegged to inflation advantages most plaintiffs cannot manage money can factor in reduced lifespan disadvantages guarantor can become insolvent defendant can gain by early death of plaintiff Proving damages Must put on evidence for each element Must be related to the injury Remittur - reduction or new trial Additur - addition and no new trial questionable because of coercion - not in federal courts
- " Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under the circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Conduct which falls below the standard established by law for the protection of others is unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances." Definitions of gross negligence on the Web: Intentional failure to perform a duty, reckless disregard of the consequences as affecting the life or property of another www. insurancebeacon .com/Online_Insurance_Quote_Glossary/glossary_g. htm The degree of negligence somewhat greater than ordinary negligence. It may be a reckless wanton and willful misconduct causing bodily injury and/or property damage. Guiding Principles A loss may be covered by more than one policy. One policy may have a co-insurance clause and the other may not. How any loss in such circumstances should be apportioned between the various insurance companies involved creates a problem. To meet this problem, the majority of insurance companies have agreed to certain rules and principles. These principles override the actual wording of the policy so the insured is indemnified with least www. wawanesa .com/insure_general_glossary_am.asp This phrase applies to misconduct that exceeds ordinary negligence, although most courts do not require proof of willfulness or wantonness. Gross negligence—in most states—can result from multiple acts of ordinary negligence. www. bobschuster .com/legal_terms.html Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct . The continuum runs from (1) ordinary negligence , through (2) gross negligence , (3) willful and wanton misconduct , (4) reckless misconduct to (5) intentional misconduct . The difference between negligence and gross negligence is a matter of degree. Monaghan v. Holy Trinity Church , 275 N.J. Super . 594, 599 (App. Div. 1994); Stuyvesant Assoc. v. Doe , 221 N.J. Super. 340, 344 (Law Div. 1987). Gross negligence does not imply willful or wanton misconduct or willfulness. Stuyvesant Associates, supra . “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.” G.S. v. Dept. Human Serv. DYFS , 157 N.J. 161, 179 (1999). Negligence in private law Under civil common law , negligence is an ingredient of many non-intentional torts or wrongs that one individual suffers because of the nonfeasance, misfeasance or malfeasance of another. As opposed to the common law tradition of most Anglo-American jurisdictions, in civil law legal systems (such as continental Europe, Quebec and Puerto Rico ) negligence is classified as a form of extra-contractual responsibility called a quasi- delict (in distinction to the more willful delicts ) within the conceptual framework of the law of obligations . The rules and elements are not the same as those set forth below under the Anglo-American common law tradition . A lawsuit grounded in a claim of negligence might be brought, for example, by someone injured in an auto accident against another driver who he felt caused the accident by being reckless or irresponsible. Note: unless otherwise stated, the rest of this section refers to negligence under common law (not criminal negligence) in the common law as practised in most of the jurisdictions of the United States. [ edit ] Negligence in common law countries Under law, negligence is usually defined in the context of jury instructions wherein a judge, in fitting language, tells the jury that a party is to be considered negligent if they failed to exercise the level of care that a reasonable person, possessed of the same knowledge, would have exercised under the same circumstances. In most jurisdictions, it is necessary to show first that a person had a duty to exercise care in a given situation, and that they breached that duty. In order to prove negligence, it is not necessary to prove harm, but in order for a cause of action to rest in tort, harm must be proven. Hence, it would be meaningless to sue someone for negligence if no harm resulted. Conversely, it is not enough that a harm was done. In order for the harm to be compensable in a negligence lawsuit, the defendant must be shown to have been negligent, and it must be demonstrated that his negligence was the proximate cause of the harm felt by the plaintiff . The law holds that any reasonable person would, if able, follow the law. Consequently, as a matter of law, a person may be declared by a court liable as a matter of law (" negligence per se ") if it is proven that they broke the law. For example, someone injuring another in an auto accident may be found negligent per se in a civil suit arising from the accident if they were convicted in criminal court of driving while intoxicated at the time of the accident. Negligence can lead to this sort of accident - a train wreck at Gare Montparnasse in 1895. Damages are awarded in proportion to the scope of the harm done, following the principle of restitutio in integrum (literally 'restoration to the original condition'). Thus the severity of the negligence is irrelevant. Still, some negligent acts are recognized as a matter of law to be so egregious as to merit financial penalty over and above actual damages, in order to reform the conduct of a malicious or callously indifferent defendant, and, by example, others similarly disposed. This is the purpose of punitive damages . Such acts are rare, well-defined in the law of applicable jurisdictions, and limited to the exact conditions of the law under which they may be awarded. Only when the severity of negligence rises to an extreme level (and then, only when harm results from it) might it meet the standards required under laws providing for punitive damages. [ edit ] Components of a negligence cause of action A negligence lawsuit involves many components which need to be considered before the success of the case can be determined. Proving negligence is far more complicated than it may seem. When considering a negligence cause of action there are six primary elements which need to be viewed and covered thoroughly: (1) duty, (2) breach of duty, (3) causation, (4) damage, (5) remoteness and (6) defences. Once this has been done an appropriate award of damages may be considered. [ edit ] Duty see full article on duty of care (1) The duty element is the legal requirement that the person being sued for negligence must adhere to a standard of conduct in protecting others from unreasonable risk of harm. The duty element may be considered a formalisation of the implicit responsibilities held by an individual towards another individual within society. Manufacturers are reponsible for adequately warning consumers of possibly dangerous products. Failure to do so could make the manufacturer liable for possible damages. Different duties apply to different people. Parents have a duty to care for their children. Landlords have a duty to keep a residence habitable for their tenants. Each duty is applicable to the pertinent responsibility at hand. Professionals are held to a higher standard of care than the average person in society. These people take oaths in their professions and need to maintain that level of duty when they perform their professional activities. [ edit ] Breach of duty (2) Breaching that duty is the second element to a negligence lawsuit. The question to be asked is: Would a reasonable person in a similar situation have done the same thing as the person being sued? To come to that conclusion both objective and subjective standards need to be considered. The objective standard of breach of duty only considers a hypothetical person and what their reasonable behaviour might be. The subjective standard considers the actual person being sued and if the jury thinks they acted reasonably in the matter at hand. See also : calculus of negligence [ edit ] Causation (3) The causation of negligence is the third critical element of the lawsuit. Both actual cause and proximate cause are considered. Actual cause asks the question of whether the person being sued, the defendant, was the actual cause of injuries sustained by the person initiating the lawsuit, the plaintiff. Proximate cause looks at the issue of foreseeability. When considering the event that has happened, it is asked whether or not the injuries sustained were foreseeable or too remotely connected to the incident to even consider. [ edit ] Damage (4) Plaintiffs must have suffered damage - either physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss consequent on a personal injury) - from the negligent act if they are to have a cause of action against the tort feasor (note, however, under English law at least, and derivatives thereto, no cause of action arises save for in a number of 'special' and clearly defined circumstances where the damage is purely financial). [ edit ] Remoteness (5) Only reasonably foreseeable damage may be recovered by an action in negligence. This means that at the time the tort feasor committed the negligent act, it must have been reasonably foreseeable that damage of the same kind as the plaintiff suffered would ensue from it. The extent of the damage need not be foreseeable; and it matters not what the plaintiff in fact foresaw - the test is a purely objective one. [ edit ] Defences (6) Notwithstanding that the plaintiff can prove elements (1) - (5) above, the tort feasor may have a complete or partial defence to the tort. Where the defence is complete, the plaintiff will be denied any remedy - i.e. damages (on damages see below) - by the Court. Where the defence is partial, the plaintiff's award of damages will be reduced to the extent of the partial defence. A common complete defence is where the tort feasor proves that the plaintiff consented either expressly or implicitly to the risk of damage. Another is where tort feasors can show that by a notice, sign or otherwise, they have validly excluded liability for the damage the plaintiff is seeking a remedy for. Contributory negligence is an absolute defense under the common law. This is where the tort feasor proves that the plaintiff acted negligently and that this negligence contributed to the damage the plaintiff suffered from the tort feasor's negligent act. A simple example is where D's negligent driving caused P damage, but P's negligent driving also was a cause of that damage in part, in that, but for P's failure, his injuries would not have taken place or would not have been as severe as they in fact were. Where contributory negligence was proved, under the common law, the plaintiff would recover nothing. This doctrine has been widely criticized as draconian, in that a plaintiff whose fault was comparatively minor might recover nothing of a more egregiously responsible defendant. In most common law jurisdictions it has been replaced judicially or legislatively by the doctrine of comparative negligence (often still referred to as contributory negligence), under which the court will reduce the plaintiff's damages by the degree to which the plaintiff's own negligence contributed to his loss. Additionally if the plaintiff is involved in wrongdoing himself at the time the alleged negligence occurred, it is possible that this might reduce the defendant's liability: ex turpi causa non oritur actio - no right of action arises from a despicable cause. There is much uncertainty concerning the application of the doctrine. [ edit ] Damages (7) Where plaintiffs prove (1) - (5) above, and the tort feasor cannot prove a complete defence, they may recover damages (money) for their loss. It is the court that decides the amount of damages to be awarded. Tortious damages are, in general, compensatory and not punitive in nature. This means that the award decided upon should be reflective only of the plaintiffs' actual loss - it should aim to compensate them fully for it, but not to punish the tortfeasor. The award should be sufficient so as to put the plaintiffs back in the position they were before the tort was committed, but must not go any further, otherwise the plaintiffs would actually benefit from the tort. The plaintiff's award of damages may be comprised of the following heads of damage: Special damages - losses suffered from the date of the tort up until the date of trial and which can be precisely quantified in monetary terms. General damages - losses that cannot be quantified exactly in monetary terms (the actual pain suffering and loss of amenity caused by the negligent act come under this head of general damages), as well as expected future losses from the date of trial (e.g. loss of earnings). In certain limited cases the court may depart from the compensatory principle relayed above and award punitive (also known as exemplary) damages in addition to general and special damages. This is usually done where the tort feasor intentionally committed the tort for economic gain. The tort feasor is then duly punished in this way in the hope that doing so will deter similar actions in the future both by the defendant and others. Where the plaintiff's general or special damages are negligible or wholly unquantifiable the court may award nominal damages. [ edit ] Legal procedures in negligence lawsuits While most lawsuits are settled when a negligence lawsuit goes to trial, the judge will determine what the defendant's duty was to the plaintiff as a matter of law using the standard of reasonableness. In the United States, if it is questionable what a reasonable person would do, a jury picked by the adversaries (plaintiff and defendant) will consider the facts and render a decision as well as determine the quantum of damages. Sometimes the trier of fact will be the judge — this has been the case in England since the 19th century and is generally the case in the other Commonwealth countries . [ edit ] Procedures and law in civil law jurisdictions There are some differences in the law of negligence in civil law jurisdictions, but the basic rules above are also applied in these delict cases. In civil law jurisdictions the procedure is more akin to an investigation with investigative judges will interview all parties and witnesses and then prepare reports to be submitted to a panel of judges for final decision. That decision may also be appealed several levels through a judicial hierarchy. [ edit ] Leading cases Bolton v. Stone Donoghue v. Stevenson Palsgraf v. Long Island Railroad Co. [ edit ] Criminal negligence Willful Misconduct
- Gross negligence is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. Gross negligence is indifference to legal duty and utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights other. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence.
- Common Issues at Unemployment Compensation Hearings: " Willful Misconduct " Q: Can you be denied unemployment compensation if you've been fired? A: Yes. You can be denied unemployment compensation when fired, but only if you were fired for " willful misconduct " (43 P.S. § 802(e)). For you to be denied unemployment compensation, it is up to your former employer to prove that you fired for " willful misconduct ". If your former employer can prove your willful misconduct , you may still receive unemployment compensation if you can show that your misconduct was justified or you had good cause for your actions (McLean v. UCBR, 476 Pa 617 (1978)). Q: What are some examples of " willful misconduct "? A: Common examples of willful misconduct include: 1. Deliberate violation of employer rules You can be denied unemployment compensation when fired for deliberately violating a company rule. Your employer must prove that a rule exists and you broke it (Arbster v. UCBR, 690 A.2d 805 (1997)). Usually, breaking a company rule is not considered " willful misconduct " if it was an accident, or if you didn't know about the rule (BK Foods v. UCBR, 547 A.2d 873 (1988)). Furthermore, breaking a company rule is not willful misconduct , if you have "good cause" to break it, or if the rule is unreasonable (Gillins v. UCBR, 534 Pa. 590 (1993)). Examples of "good cause" to break a company rule include: Illness (Thompson v. UCBR, 723 A.2d 743 (1999)). Fear or injury (Belton v. UCBR, 402 A.2d 571 (1979)). Physical inability to comply with the rule (Johnson v. UCBR, 422 A.2d 223 (1980)). Emergency (Porter v. UCBR, 450 A.2d 243 (1982)). Ignorance of the rule (Williams v. UCBR, 380 A.2d 932 (1977)). Vagueness of the rule (UCBR v. Bacon, 361 A.2d 505 (1976)). For violation of a rule to be " willful misconduct ", the rule must be fairly and consistently applied (Spirnak v. UCBR, 557 A.2d 451 (1989)). If your employer has tolerated rule-breaking in the past, your breaking the rule now may not be considered " willful misconduct " (Penn Photomounts v. UCBR, 417 A.2d 1311 (1980)). 2. Failure to follow an employer's instructions Failure to follow an employer's instructions can be "considered willful " misconduct . However, it is not " willful misconduct " if your employer's demand was unreasonable or your refusal was justified (Frumento v. UCBR, 466 Pa. 81 (1976)). To claim that your employer's demand was unreasonable or your refusal was justified, you must have told your employer why you refused to follow the instruction (unless it is obvious or your employer already knew) (Klapec Trucking v. UCBR, 503 A.2d 1122 (1986)). 3. Absenteeism/ Tardiness Absenteeism and tardiness is only " willful misconduct " if you don't have "good cause" for you absence/ tardiness, or if you fail to report your absence/ tardiness to your employer, as required by company rules ( Frumento v. UCBR, 466 Pa. 81 (1976)). Examples of "good cause" for absenteeism/ tardiness include: Illness (Kindrew v. UCBR, 388 A.2d 801 (1978)). Transportation problems (Adept Corp. v. UCBR, 437 A.2d 109 (1981)). Family emergencies (Maldanado v. UCBR, 503 A.2d 95 (1986)). Lack of child care (Ganter v. UCBR, 723 A.2d 272 (1999)). Bad weather/ fear of injury (Freedom Valley S & L v. UCBR, 436 A.2d 1054 (1981)). Religious observances (SEPTA v. UCBR, 422 A.2d 905 (1980)). Civic duty (Frumento v. UCBR, 466 Pa. 81 (1976)). Reasonable belief that you had the day off from work (Alma Illery Med. Center v. UCBR, 437 A.2d 467 (1981)). Pre-conviction imprisonment (Hawkins v. UCBR, 472 A.2d 1191 (1984)). However, absenteeism because of imprisonment following a conviction is willful misconduct (Wertman v. UCBR, 520 A.2d 900 (1987)). 4. Failing to meet normal standards of behavior (Biggs v. UCBR, 443 A.2d 1204 (1982)). Stealing (Kostik v. UCBR, 315 A.2d 308 (1974)). Fighting (unless self-defense) (Peeples v. UCBR, 522 A.2d 680 (1987)). Being intoxicated (Ramsey v. UCBR, 450 A.2d 322 (1982)) Lying or falsifying information (Smith v. UCBR, 411 A.2d 280 (1980)). Using unprovoked abusive or offensive language (Williams v. UCBR, 531 A.2d 88 (1987)). Intentionally breaching confidentiality (Boyle v. UCBR, 510 A.2d 890 (1986)). Being disloyal by directly competing with your employer or aiding a competitor (Jordan v. UCBR, 547 A.2d 811 (1988); Burke v. UCBR, 512 A.2d 1367 (1986)). Engaging in extremely negligent acts (Simmons v. UCBR, 565 A.2d 829 (1989)). Q: If you are fired for your actions outside of work, can you be denied unemployment compensation? A: You can be denied unemployment compensation if you were fired for wrongdoing outside of work, but only if: 1) You engaged in some unacceptable conduct, for which you were at fault, and 2) This conduct negatively affects your ability to properly do your work (Martin v. UCBR, 713 A.2d 753 (1998)). For example , if you are in a position of trust (such as a security guard or a clerk who handles money), and you are fired because you were convicted of a certain crime (such as theft), you will probably be denied unemployment compensation. A criminal conviction is considered unacceptable conduct that you are at fault for, and since you are in a position of trust, the conviction is seen as negatively affecting your ability to properly do your work.
- Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct . The continuum runs from (1) ordinary negligence , through (2) gross negligence , (3) willful and wanton misconduct , (4) reckless misconduct to (5) intentional misconduct . The difference between negligence and gross negligence is a matter of degree. Monaghan v. Holy Trinity Church , 275 N.J. Super . 594, 599 (App. Div. 1994); Stuyvesant Assoc. v. Doe , 221 N.J. Super. 340, 344 (Law Div. 1987). Gross negligence does not imply willful or wanton misconduct or willfulness. Stuyvesant Associates, supra . “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.” G.S. v. Dept. Human Serv. DYFS , 157 N.J. 161, 179 (1999). Understanding Negligence with Julie Fershtman, Attorney at Law What is negligence ? A highly authoritative widely-accepted definition is found in Black’s Law Dictionary (5th Edition) which states, in part: " Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under the circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Conduct which falls below the standard established by law for the protection of others is unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances." Put another way, to be negligent, conduct must fall below a legal standard designed to protect others. Can someone be found legally negligent without intending to inflict harm? Yes. This is perhaps the most difficult and frustrating aspect of negligence liability. The law does recognize the difference between negligence and gross negligence . " Gross negligence " is sometimes compared with "willful and wanton misconduct," and is understood in many states to involve an act or omission in reckless disregard of the consequences affecting the life or property of another. Can you provide examples that show the difference between negligence and gross negligence ? Suppose a public riding facility or horse owner has carelessly forgotten to adjust a horse’s cinch before sending him out on the first ride of the day. If the saddle slips and the rider is injured, that facility or owner will probably be found negligent. However, if a facility or horse owner saddles a horse with broken cinches or girth straps, knowing the equipment could fail at any time, that facility or horse owner will likely be found to have committed acts of gross negligence when the equipment breaks and injures the rider. Who can be sued for negligence ? Inevitably, when a negligence lawsuit is brought, the attorney who represents the plaintiff (the one bringing the suit) will attempt to sue all possible persons. Potential defendants in a negligence case could include the individual(s) who caused the injury, the facility where the injury occurred, the owner of the property, and the owner of the horse(s) that caused the injury. Can you be sued even if you were not directly involved in an incident? Yes. For example , the partners in a partnership can be liable, and an employer may be liable for its employees who act negligently in performing their job duties. What are "damages" and how are they determined? Damages are the money a plaintiff is allowed to receive if the plaintiff can prove that the defendant caused the personal injury and is legally responsible for the resulting harm. Damages are evaluated by a judge or jury. In many states, damages in negligence lawsuits can include (but are not limited to) compensation for: the injury suffered damaged or destroyed personal property medical and hospital bills harm to marital relations (called "loss of consortium") lost past and future earnings and physical and emotional "pain and suffering" What about punitive damages? If a defendant is found to have acted intentionally or maliciously, courts in several states might order him, her, or a legal entity, to pay the plaintiff "punitive" damages. These types of damages are designed to punish the defendant and to discourage similar wrongful conduct by others. What kinds of equine activities have generated the most negligence claims? There are certain settings in which injured people have, over the years, sued individual horse owners, professionals, and stables for negligence , including: "Vicious or Dangerous" Propensities Failing to Properly Supervise Equipment Defects Unsuitability What are "vicious or dangerous" propensities? Biting, kicking, bolting and bucking are some behaviors that courts have classified as dangerous propensities. In many states, people have been found to be negligent if they knew, or had reason to know, of these behaviors and failed to take protective actions. Protective actions could include posting of appropriate warning signs, and proper restraint and confinement of a horse. Plaintiffs who have brought these types of lawsuits include social guests, prospective horse buyers, lessees and business customers. How about "failing to properly supervise"? Negligence lawsuits have asserted that the defendant’s failure to properly supervise the plaintiff caused the injury. These types of lawsuits have historically been directed against riding instructors and riding academies. Aren’t "equipment defects" the responsibility of the manufacturer? These cases usually involve defective or improperly adjusted saddles or harnesses. Explain the kind of situation that could lead to a claim of "unsuitability." Some negligence cases assert that the defendant (usually a riding stable or equine professional) failed to match the horse properly to the rider, based on the rider’s actual or stated level of ability and experience. How can you protect yourself from a negligence suit? Having a basic understanding of what creates liability is an important first step. Beyond this, horse owners and facilities should take active measures to foresee and prevent, as much as possible, the conditions that give rise to injuries, and potentially, liability. Keep informed of specific ways to avoid liability and to make your operations safer. Consider joining groups that are specifically organized to promote safety in equine activities, and share safety information. Why do I need liability insurance? Even if they believe they have the "perfect" program and precautions to avoid lawsuits, and even if their state has adopted an equine liability law, horse facilities and horse owners should secure proper insurance. The equine liability laws were not designed to end all lawsuits in the horse industry.
- For Example: You pay Mary’s tuition. Mary’s tuition should have been paid by Mary’s father (as per Mary’s parents’ divorce settlement). The right of subrogation gives you the right to get the money from Mary’s father.
- Jurisdiction : A term of comprehensive import embracing every kind of judicial action. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the powers of courts to inquire into facts, apply the law, make decisions, and declare judgment. Venue : (Formerly spelled visne.) A particular county, or geographical area, in which a court with jurisdiction may hear and determine a case. Venue deals with locality of suit, that is, with question of which courts, or courts, of those that possess adequate personal and subject matter jurisdiction may hear the specific suit in question. It relates only to place where or territory within which either party may require case to be tired. Venue may be determined by where the action arose or where the parties reside or conduct their business.
- Mutual relationship to the same rights of property, contractual relationship. The doctrine of privity in English law provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. This seems to make adequate sense, in that only parties to contracts should be able to sue to enforce their rights or claim damages as such. However the doctrine has proven problematic due to its implications upon contracts made for the benefit of third parties who are unable to enforce the obligations of the contracting parties. A well-established principle of contract law (see: Contract ) is that only the parties to the contract can make claims against it. The archetypal case is Dunlop v Selfrige in which Dunlop took action against Selfridge for breach a contract with an intermediary
- Definitions of Chattel on the Web: Personal property. www. titleguarantynm .com/terms_c.asp An article of personal property. brandonlclark .com/glossary.html Personal property such as furniture, clothing or a car. www. boise - idahos -real-estate.com/real-estate-definitions-c-158.html Another name for personal property. www. reidepot .com/Glossary/c.html Anything tangible and owned, other than real estate. The same as personal property. www. easierhomeloans .com/glossary/glossary(c). htm An item of personal property which is not affixed to the land or building (as opposed to a fixture, an item which is a part of the land or building). Chattels are generally not included in the sale of property unless specifically included in the Agreement of Purchase and Sale. www. realestateagent -listings.com/terminology/terminology_c. htm Tangible personal property (eg, tractors, grain, livestock, vehicles). www.extension. iastate . edu / agdm / wholefarm /html/c3-05.html Personal property other than interests in land. strategis . ic . gc .ca/epic/internet/ insof - sdf . nsf /en/so03148e.html Personal property which is tangible and moveable. www. bthurston .com/Real_Estate_Dictionary/page_644889.html Articles of personal property such as household goods, furnishings, and fixtures that are not permanently affixed to the house. www. bc -realty.com/mortgage/glossary.html Personal property that may be on the subject property but which does not figure into the opinion of value in the appraisal report. www. leeperappraisal .com/appraiser_jargon. htm Moveable items of property which are neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property. A piano is chattel but an apartment building, a tree or a concrete building foundation are not. The opposite of chattel is real property which includes lands or buildings. All property which is not real property is said to be chattel. ... www. mostreferred .com/resources/glossary-c.html Any personal property which is not attached to or an integral part of a property. Chattel is not commonly taken into consideration when appraising the value of real property. www. homesfornh .com/new- hampshire -mortgage/mortgage-glossary-ac.html The personal property belonging to an individual. www. tsgraves .com/relics/ legalLand . htm A moveable article of property; any article of tangible property other than land, buildings, and other things annexed to land. www. realestatemanitoba .com/glossary. htm A loan secured against personal property, which is common in the financing of manufactured homes. www. nuestracdc .org/Mortgage%20Terminology.html Chattel is an item of tangible movable or immovable personal property that is not a part of an appraisal but is present on the property. www. mortgageloanrequest .com/mortgage-learning-center/appraisals/appraisal-glossary.html personal property, both animate and inanimate. Slaves were considered to be chattels freepages .genealogy. rootsweb .com/~randyj2222/ gendictc .html It stands for property other than real property. For instance, movable properties are chattels personal and construction on real property is a chattel real. www. indiainfoline .com/ bisc / jmfc .html Anything owned and tangible other than real estate, for example: furniture, automobiles, and jewelry. www. ramfunding .com/ noteownersmanual /glossary_C. htm A material object constituting the subject of personal property. www.antique-home.com/Library/Glossary-of-Terms/Glossary1. htm personal as opposed to real property; any tangible movable property (furniture or domestic animals or a car etc) wordnet . princeton . edu / perl / webwn Personal property is a type of property. In the common law systems personal property may also be called chattels, it is distinguished from real property, or real estate or realty. In the civil law systems personal property is often called movable property or movables, any property that can be moved from one location or another. This term is in distinction with immovable property or immovables, such as land and buildings. en. wikipedia .org/ wiki /Chattel
- A power of attorney or letter of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the "principal" or "grantor (of the power)", and the one authorized to act is the "agent" or " attorney-in-fact ". The attorney-in-fact acts "in the principal's name," signing the principal's name to documents and filing suit with the principal's name as plaintiff, for example. As one kind of agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is a separate matter from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people. The power of attorney (often called " POA " for short) may be oral—such as asking someone else to sign your name on a cheque because your arm is broken—or may be in writing. Many institutions, such as hospitals, banks, and the I.R.S., require a power of attorney to be in writing before they will honor it, and they usually want to keep an original for their records. The " equal dignity rule " is a principle of law that requires a document authorizing someone representing someone else to have been appointed with the same formality as required for the act the representative is going to perform, and it applies to powers of attorney. This means, for example, that if you give someone your power of attorney to sign the papers to sell your house, and the law requires that signature on the deed to be notarized, then your power of attorney authorizing that attorney in fact to sign the deed must be notarized, too. A power of attorney may be "special" or "limited" to one specified act or type of act, or it may be "general," and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called a " durable power of attorney ". In some jurisdictions such a durable power of attorney can also function as a " living will ", which can be used to appoint someone to make health-care decisions for the grantor, up to and including "pulling the plug" on machines keeping them clinically alive. New York State has enacted a " Health Care Proxy " law that requires a separate document be prepared appointing one as your health care agent. In some U.S. states and other jurisdictions it is possible to enact a springing power of attorney ; i.e., a power that only takes effect after incapacitation of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but, unlike a durable power, cannot be invoked before the incapacity. This is often used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes him unable to act, while retaining the power for himself before the incapacity occurs. Unless the power of attorney has been made "irrevocable" (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney in fact it is revoked; however, if the principal does not inform third parties and it is reasonable that the third parties could rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts. Many standardized forms are available (usually for free) for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available as some individuals have used powers of attorney to unscrupulously waste that assets of vulnerable individuals such as the elderly (see elder abuse). The power of attorney (often called " POA " for short) may be oral—such as asking someone else to sign your name on a cheque because your arm is broken—or may be in writing. Many institutions, such as hospitals, banks, and the I.R.S., require a power of attorney to be in writing before they will honor it, and they usually want to keep an original for their records. The " equal dignity rule " is a principle of law that requires a document authorizing someone representing someone else to have been appointed with the same formality as required for the act the representative is going to perform, and it applies to powers of attorney. This means, for example, that if you give someone your power of attorney to sign the papers to sell your house, and the law requires that signature on the deed to be notarized, then your power of attorney authorizing that attorney in fact to sign the deed must be notarized, too. A power of attorney may be "special" or "limited" to one specified act or type of act, or it may be "general," and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called a " durable power of attorney ". In some jurisdictions such a durable power of attorney can also function as a " living will ", which can be used to appoint someone to make health-care decisions for the grantor, up to and including "pulling the plug" on machines keeping them clinically alive. New York State has enacted a " Health Care Proxy " law that requires a separate document be prepared appointing one as your health care agent. In some U.S. states and other jurisdictions it is possible to enact a springing power of attorney ; i.e., a power that only takes effect after incapacitation of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but, unlike a durable power, cannot be invoked before the incapacity. This is often used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes him unable to act, while retaining the power for himself before the incapacity occurs. Unless the power of attorney has been made "irrevocable" (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney in fact it is revoked; however, if the principal does not inform third parties and it is reasonable that the third parties could rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts. Many standardized forms are available (usually for free) for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available as some individuals have used powers of attorney to unscrupulously waste that assets of vulnerable individuals such as the elderly (see elder abuse). n. a written document signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (the agent) is "attorney in fact" for the person giving the power, and usually signs documents as "Melinda Hubbard, attorney in fact for Guilda Giver." There are two types of power of attorney: a) general power of attorney, which covers all activities, and b) special power of attorney, which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction. General Power of Attorney A general power of attorney is very broad and provides extensive powers to the person or organization you appoint as your agent. These powers usually include: Handling banking transactions Entering safety deposit boxes Handling transactions involving U.S. securities Buying and selling property Purchasing life insurance Settling claims Entering into contracts Exercising stock rights Buying, managing or selling real estate Filing tax returns Handling matters related to government benefits You also have the option to grant the following additional powers to your Agent: Maintaining and operating business interests Employing professional assistance Making gifts Making transfers to revocable ("living") trusts Disclaiming interests (this has to do with estate planning strategies to avoid estate taxes) A general power of attorney is usually used to allow your agent to handle all of your affairs during a period of time when you are unable to do so. For example, when you are traveling out of the state or country or when you are physically or mentally unable to handle your affairs. A general power of attorney is frequently included as part of an estate plan to make sure that you have covered the possibility that you might need someone to handle your financial affairs if you are unable to do so. For all sorts of Power of Attorneys for Your Specific State and Circumstance check out: (This may open a new window. When you're done just close it and you might be back here.) Special Power of Attorney A special power of attorney allows you to give only specific powers to the person or organization you appoint as your "Agent." For example, you could authorize someone to sell a car or a house for you. Many people use the special power of attorney to authorize their Agent to do one or several of the following: Handle banking transactions Enter safety deposit boxes Handle transactions involving U.S. securities Collect debts Sell real estate Mortgage real estate Manage real estate Sell personal property Borrow money Manage business interests Handle government issues Make financial decisions Make estate planning decisions, including gifts A special power of attorney is often used to allow your Agent to handle specific situations for you when you are unavailable or unable to do so. For example, you may be traveling outside the state or country, or you may be unable to handle a specific situation because of other commitments, or health reasons. Health Care Power of Attorney A Health Care Power of Attorney is a document that allows you to designate a person (an "Agent") who will have the authority to make health care decisions on your behalf if you are unconscious, mentally incompetent, or otherwise unable to make such decisions. In many states you can also express your wishes regarding whether you wish to receive "life-sustaining procedures" if you become permanently comatose or terminally ill, in the Health Care Power of Attorney document. This will help your agent to know your wishes as he or she makes decisions for you. Even if you do include this in the document, you should still discuss the Health Care Power of Attorney with the Agent, expressing your wishes, values and preferences regarding health care. A Health Care Power of Attorney is different from a Living Will because it allows you to appoint someone to make health care decisions for you. A Living Will only allows you to express your wishes concerning life-sustaining procedures. Both Living Wills and Health Care Powers of Attorney are considered "Advance Health Care Directives" because you're giving instructions on what you'd want to happen in the event that you become unable to make health care decisions in the future. Some states also have a specific "Advance Health Care Directive" document that combines elements of a Health Care Power of Attorney and a Living Will. (For a more in-depth look at Advance Health Care Directives, Health Care Powers of Attorney and Living Wills, click here.) Even if you have executed a Health Care Power of Attorney, you still have the right to give medical directions to physicians and other health care providers as long as you are able to do so. This document only becomes effective when you do not have the capacity to give, withdraw or withhold informed consent regarding your health care. Durable Power of Attorney A "durable" power of attorney is actually a general, special or health care power of attorney that contains special durability provisions. If you become mentally incompetent while you have a power of attorney document that's already in effect, a durability provision will allow the document to stay in effect. You can also sign a durable power of attorney document to prepare for the possibility that you may become mentally incompetent due to illness or an accident. In this case, you would specify that the power of attorney wouldn't go into effect unless a doctor certifies that you are mentally incapacitated. You don't have to choose a lawyer to be your agent, but it is important to select someone you trust. The relative, friend or business you choose to be your Agent will be acting on your behalf regarding your financial or health care issues. You need to choose someone who won't abuse the powers you grant to them and will look out for your best interests. In general, an agent is only held responsible for misconduct that's intentional, not for unknowingly doing something wrong. This type of protection is included in most power of attorney documents to help encourage people and organizations to accept the responsibility of being an Agent. Usually there is no financial incentive to serve as an Agent, most serve without compensation. Successor Agents There is always the possibility that the person or organization you appoint as your Agent either won't be able to serve or will refuse to serve. That's why you have the option of appointing a Successor Agent who can take over as Agent if necessary. Here is an illustration of why appointing a Successor Agent is a good idea: An elderly husband names his elderly wife as his Agent. After signing the power of attorney document, they are both diagnosed as having Alzheimer's disease. The wife becomes mentally incompetent and can't serve as her husband's Agent. The husband is also mentally incompetent and can't sign a new power of attorney. If the husband had named a Successor Agent, he or she could have taken over as Agent. Mental Competence In order for a power of attorney document to be valid, you must be mentally competent when you sign it. This means that you must understand the powers that you are granting to your Agent and the implications of having someone else make decisions for you. If there is any question about your mental competence, it's a good idea to have a physician evaluate you and state in writing that you are competent. If you have signed a "durable" power of attorney document, it will either remain in effect or go into effect if you become mentally incompetent. But how will your mental competence be determined? This is something that you can spell out in the document. For example, you can name a physician whom you wish to make the determination. Or, you can require that two licensed physicians agree on your mental capacity. Even if your document doesn't set specific requirements, it's still likely that your Agent will have to get a doctor's written confirmation of your incompetence. Most businesses and organizations won't allow your Agent to act on your behalf without it. In some cases, a court may be required to decide the issue using generally accepted standards. How does a doctor decide if you're mentally competent? In general, the doctor will consider whether you have an understanding of the subject area covered by the Power of Attorney, whether you understand the implications and importance of the matters involved, and whether you can make and communicate reasoned choices. Signing the Document A power of attorney must be signed by the person granting the authority (known as the "Principal"). The Principal must be mentally competent at the time of the signing in order to make the document legally binding. If there is any question about the Principal's mental competence, a physician may be asked to certify in writing that the person understands the document and the consequences of signing the document. The signature on a power of attorney should also be notarized. Notarization makes it harder for someone to challenge the validity of the signature. It also allows the document to be "recorded" for use with real estate transactions.
- fiducial relationship does not exist simply because someone places their trust in another person. One must have a reasonable basis for placing their trust in someone, one that arises from the facts that pertain to that relationship. A court ruled, "Mere respect for the judgment of another or trust in his character is not enough to constitute such a relationship. There must be such circumstances as indicate a just foundation for a belief that in giving advice or presenting arguments one is acting not in his own behalf, but in the interests of another party." ( Cranwell v. Oglesby , 12 N.E. 2d 81, 299 Mass. 148, 1937). Professions Members of various professions such as physicians , architects , and lawyers , have highly specialized training, and they often possess credentials that enable them to claim expertise in a particular field. This claim would tend to constitute a reasonable basis of trust on the part of others who avail themselves of their services, thereby placing the professional in the position of a fiduciary. Most professions are subject to specific codes of conduct prescribed by law or independent credentialing authorities (e.g., bar associations or universities). Other roles Understood in its broadest terms, one can imagine a number of other fiduciary positions that arise from particular kinds of relationships, for example, the relationship between employers and employees, investment managers and investors, parents and children, teachers and students, and so forth. In each case, there the person who is the fiduciary acts for the benefit of people who have a reasonable basis of placing their trust in them based on the scope of the relationship and the explicit or implicit agreement between the parties as to the terms that govern the relationship. Moral fiduciary Some philosophers (see, for example, Michael E. Berumen ), argue that everyone who is a moral agent is also a moral fiduciary, because he/she has a responsibility towards others, namely, to conduct themselves in accordance with moral rules, and that other members of the moral realm have a reasonable basis for expecting such behavior. General fiduciary duties Benjamin Cardozo , while sitting on the Court of Appeals of New York made perhaps the most famous description of fiduciary duties in Meinhard v. Salmon, 249 N.Y. 458, 464 (1928): Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. Generally, the law recognizes three major fiduciary duties: duty of loyalty, i.e. a fiduciary must not place his own interests ahead of the beneficiary's interest; duty of care, i.e. a fiduciary must exercise an amount of care appropriate to manage the beneficiary's interest; and duty of disclosure, i.e. a fiduciary must disclose certain information to the beneficiary. Fiduciary law is particularly relevant to the law of trusts , partnerships , agency , and corporate officers and directors ( corporate governance ). Fiduciary duties are always particularized to the actual relationships they occur in, and often they can be modified (or even waived) by contract. The following are encapsulations of duties outlined in Berumen's Do No Evil: Ethics with Applications to Economic Theory and Business , which would seem to apply to all fiduciary relationships: Fiduciaries are responsible for ensuring that they have the necessary knowledge to perform in accordance with their capacity. Fiduciaries must disclose any limitations, conflicts of interest, or barriers to performing their duties. Fiduciaries must comply with any legal and professional requirements pertaining to their roles, and also with any relevant moral strictures. Fiduciaries must not take unfair advantage of their relationship (e.g., misuse information) in a way that could have deleterious effects on those who place their confidence in them.
- fiducial relationship does not exist simply because someone places their trust in another person. One must have a reasonable basis for placing their trust in someone, one that arises from the facts that pertain to that relationship. A court ruled, "Mere respect for the judgment of another or trust in his character is not enough to constitute such a relationship. There must be such circumstances as indicate a just foundation for a belief that in giving advice or presenting arguments one is acting not in his own behalf, but in the interests of another party." ( Cranwell v. Oglesby , 12 N.E. 2d 81, 299 Mass. 148, 1937). Professions Members of various professions such as physicians , architects , and lawyers , have highly specialized training, and they often possess credentials that enable them to claim expertise in a particular field. This claim would tend to constitute a reasonable basis of trust on the part of others who avail themselves of their services, thereby placing the professional in the position of a fiduciary. Most professions are subject to specific codes of conduct prescribed by law or independent credentialing authorities (e.g., bar associations or universities). Other roles Understood in its broadest terms, one can imagine a number of other fiduciary positions that arise from particular kinds of relationships, for example, the relationship between employers and employees, investment managers and investors, parents and children, teachers and students, and so forth. In each case, there the person who is the fiduciary acts for the benefit of people who have a reasonable basis of placing their trust in them based on the scope of the relationship and the explicit or implicit agreement between the parties as to the terms that govern the relationship. Moral fiduciary Some philosophers (see, for example, Michael E. Berumen ), argue that everyone who is a moral agent is also a moral fiduciary, because he/she has a responsibility towards others, namely, to conduct themselves in accordance with moral rules, and that other members of the moral realm have a reasonable basis for expecting such behavior. General fiduciary duties Benjamin Cardozo , while sitting on the Court of Appeals of New York made perhaps the most famous description of fiduciary duties in Meinhard v. Salmon, 249 N.Y. 458, 464 (1928): Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. Generally, the law recognizes three major fiduciary duties: duty of loyalty, i.e. a fiduciary must not place his own interests ahead of the beneficiary's interest; duty of care, i.e. a fiduciary must exercise an amount of care appropriate to manage the beneficiary's interest; and duty of disclosure, i.e. a fiduciary must disclose certain information to the beneficiary. Fiduciary law is particularly relevant to the law of trusts , partnerships , agency , and corporate officers and directors ( corporate governance ). Fiduciary duties are always particularized to the actual relationships they occur in, and often they can be modified (or even waived) by contract. The following are encapsulations of duties outlined in Berumen's Do No Evil: Ethics with Applications to Economic Theory and Business , which would seem to apply to all fiduciary relationships: Fiduciaries are responsible for ensuring that they have the necessary knowledge to perform in accordance with their capacity. Fiduciaries must disclose any limitations, conflicts of interest, or barriers to performing their duties. Fiduciaries must comply with any legal and professional requirements pertaining to their roles, and also with any relevant moral strictures. Fiduciaries must not take unfair advantage of their relationship (e.g., misuse information) in a way that could have deleterious effects on those who place their confidence in them.
- The English common law system -- like most similar systems -- is made more predictable by the principle of StareDecisis, or `binding precedent'. New legislation is introduced into the system by the apparatus of state (see: PrimaryLegislation), but this is general rather than particular. The decisions of judges clarify the law in specific cases (see: CaseLaw). Once a decision has been made by a court, that decision binds the outcomes of cases in lesser courts where the facts are sufficiently similar. Of course, judging whether the facts are sufficiently similar to apply a precedent can be a difficult task. Historically, English law has recognized a system of `equity' alongside the common law (see: Equity). Note that the term `common law' is different from `case law' (see: CaseLaw) in the sense that the former is a system, or a total body of legislation, while the latter is the written decisions of the courts. Since the 19th Century the common law has become less significant, particular in criminal matters, as specific legislation has been developed in Statute. The common-law forms a major part of the law of many countries, especially those with a history as British territories or colonies . It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists . Contents [show] [ edit ] History of the common law The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition , custom , and precedent . Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles . The form of reasoning used in common law is known as casuistry or case-based reasoning . Common law may be unwritten or written in statutes or codes. The common law, as applied in civil cases (as distinct from criminal cases ), was devised as a means of compensating someone for wrongful acts known as torts , including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts . Today common law is generally thought of as applying only to civil disputes ; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century , although many criminal codes reflect legislative attempts to codify the common law. The type of procedure practiced in common law courts is known as the adversarial system ; this is also a development of the common law. Before the institutional stability imposed on England by William the Conqueror in 1066 , English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity ( trial by ordeal ). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. In 1154 , Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence , a distinguishing factor from today's civil and criminal court systems. Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket , the Archbishop of Canterbury . Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint. As early as the 15th century , it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity , administered by the Lord Chancellor , in the courts of chancery . By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House , by Charles Dickens . In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States , parallel systems of law (providing money damages ) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court. [ edit ] Common law legal systems The common law constitutes the basis of the legal systems of: England and Wales , the Republic of Ireland , the states of the United States (except Louisiana ), Canada (except Quebec civil law ), Australia , New Zealand , South Africa , India , Malaysia , Brunei , Pakistan , Singapore , Hong Kong , and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law . The main alternative to the common law system is the civil law system, which is used in Continental Europe , and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system. The opposition between civil law and common law legal systems has become increasingly blurred, with the importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for instance, in matters of criminal and commercial law). Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 . Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec , Louisiana and South Africa . These systems are referred to as mixed legal systems . The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states , however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co. , 13 Cal.3d 804 ( 1975 ), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence .) The state of New York , which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days. [ edit ] Basic principles of common law Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom . This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750 , since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date. By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death , which allows certain persons, usually a spouse , child or estate , to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism ). Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law . For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. [ edit ] Works on the common law The definitive historical treatise on the common law is Commentaries on the Laws of England , written by Sir William Blackstone and first published in 1765 - 1769 . Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines. [ edit ] See also Arraignment Civil law (legal system) Common-law marriage English law Grand jury Jury trial List of legal topics Scots law Demystifying Common Law Marriage By Dorian Solot and Marshall Miller Most people are fuzzy on exactly what common law marriage is. Like so many others, we used to believe that if two people lived together for seven years (or some other magical number of years), clicked their heels three times, and sprinkled some fairy dust, they'd become common law spouses. That's not exactly how it works. The idea of common law marriage emerged in medieval England, because clerics and justices who officiated at marriages were not always able to travel to rural locations where some couples lived. In that case, the couple could establish a marriage "by common law." In most states in the United States** today, there's no such thing as common law marriage. No matter how many years you live together and how much fairy dust you sprinkle, you will never have a common law marriage. That's good news if you're worried about "accidentally" finding yourself married, but bad news if you wanted the perks of marriage without the paperwork. (However, even if you'll never have a common law marriage in the legal sense, this website packed with information for people like you. You might also be interested in Unmarried to Each Other: The Essential Guide to Living Together as Unmarried Couple .) In fifteen states and the District of Columbia (see below), though, common law marriages are recognized. If a man and a woman (same-sex marriages aren't recognized) live together and "intend to be married" by acting like they are married, telling people they are married, and doing the things married people do (using words like "husband" and "wife," filing joint tax returns, etc.), they become common law spouses. This gives them the same rights and responsibilities as people who got married the old-fashioned way, with a trip to City Hall and a wedding. Common law marriage isn't something to do lightly. If you become married by common law and later decide you want to end your relationship, you still have to have a standard, legal divorce. In this way, common law marriages are very similar to regular marriages: they're usually easier to get into than to get out of. There's no simple test to see if a couple qualifies as being common law married, and the only time the question usually arises is in court. If, after death or separation, one partner claims there was a common law marriage and wants the benefits of marriage, the court would consider many factors to determine if there was truly intent to be married. Since the seven-years-to-automatic-marriage idea is only a myth, determining whether a common law marriage existed can be complicated. Some lawyers recommend that couples write, sign, and date a simple statement that says they do or do not intend to be married, to offer protection should the question ever arise. If you create a common law marriage in one of the states below and later move to a state that does not recognize common law marriage, your marriage can technically still exist. All marriages, common law or otherwise, are recognized by all states, regardless of where they were created (the debate about legalizing same-sex marriage gets tricky here, since technically, a lesbian marriage created in whatever state legalizes it first should be recognized by all other states). Few of us live in places too rural to be married these days, and fairy dust is scarce. In the U.S. today, common law marriages are more common in myth than in reality. States That Recognize Common Law Marriage Alabama Colorado District of Columbia Georgia (if created before 1/97) Idaho (if created before 1/96) Iowa Kansas Montana New Hampshire (for inheritance purposes only) Ohio (if created before 10/91) Oklahoma (possibly only if created before 11/1/98. Oklahoma's laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.) Pennsylvania (if created before 9/03) Rhode Island South Carolina Texas Utah * Standard disclaimer: the writers of this article are not lawyers. If you have questions about your legal situation, research the laws in your state or consult an attorney. ** All information in this article pertains to the United States. Common law marriage differs from country to country. In Canada, for example, what is called "common law marriage" is more common than it is in the U.S. -- about 14% of all couples are common law spouses -- but it also has different legal meanings. Some information for this article came from Living Together: A Legal Guide for Unmarried Couples by Attorneys Toni Ihara, Ralph Warner, and Frederick Hertz.
- Literally `fairness'. In mediaeval times, people could petition the King for redress in cases that could not be dealt with adequately in the common law as it then stood. The process was called `equity'. Around the end of the 15th century, the Lord Chancellor set up a separate court system to deal with such cases; it became known as the Court of Chancery. Originally equity cases were handled with no particular reference to the common law or to precedent; eventually this gave rise to such problems that subsequent reforms made the equity system much like common law. By the mid-19th century equity cases were handled side-by-side with common law cases, with equity having priority. The equity system and the Court of Chancery survives to this day as the Chancery Division of the High Court (see: HighCourt). This court still acts as an appellate (appeal) court from the county courts. So in a sense, the system of equity and the Court of Chancery still exists. However, all courts now have some of the powers that were originally vested in the Chancery Court, notably the right to grant injunctions (see: Injunction). the ownership interest of shareholders in a corporation fairness: conformity with rules or standards; "the judge recognized the fairness of my claim" wordnet . princeton . edu / perl / webwn Equity is the name given to the whole area of the legal system in countries following the English common law tradition that resolves disputes between persons by resort to principles of fairness and justness. Equity comes into play typically when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict. ... en. wikipedia .org/ wiki /Equity Ownership equity, commonly known simply as equity, also risk or liable capital, is a financial term for the difference between a company's assets and liabilities -- that is, the value that accrues to the owners (sole proprietor, partners, or shareholders). en. wikipedia .org/ wiki /Equity_(capital) The ownership interest of common and preferred stockholders in a company. www.vss2000.com/glossary/e.asp The voting capital in the company, represented by the ordinary shares. www. misys .com/investors/ shareservices /glossary/index.asp The interest of the owner in a property over and above all claims against the property. It is usually the difference between the market value of the property and any outstanding encumbrances. www. mortgagebest .ca/mortgage-terms. htm Equity is the difference between the price for which a property could be sold and the total debts registered against it. www. mytelus .com/ homegarden /article.do The ownership interest in the assets of a company or entity; funds from owners or creditors provided for acquiring assets; the difference between the amount owned (Asset) and the amount owed (Liability) by a company or entity. www. theaccountspayablenetwork .com/html/modules. php The value of your home after the outstanding balance of any loans are subtracted. www. bankturndown .com/glossary. htm The value of an owner's real property after deducting mortgages and liens. www. homespecli .com/docs/ reterms .html The net worth of a company. This represents the ownership interest of the shareholders (common and preferred) of a company. For this reason, shares are often known as equities. www. globefund .com/centre/Glossary_IFIC.html The difference between the market value and the amount of the owner's indebtedness on a property. www.actionc21.com/ leanne /Glossary.html The difference between the appraised value of a property and the debt that is owing against it. www. erealty .ca/ cgi -bin/ erealty . cgi Generally, justice or fairness. Historically, equity refers to a separate body of law developed in England in reaction to the inability of the common-law courts, in their strict adherence to rigid writs and forms of action, to consider or provide a remedy for every injury. The king therefore established the court of chancery, to do justice between parties in cases where the common law would give inadequate redress. ... courts. delaware . gov /How%20To/court%20proceedings/ Residual value of a property, calculated by deducting liens or mortgages from its gross value. www. homestore .com/ HomeGarden / HomeImprovement /Tools/Glossary/CRHO_E.asp The ownership interest of common and preferred stockholders in a company. Also refers to excess of value of securities over the debit balance in a margin account. ^ top www.annuity-central.com/annuity-glossary.html The residual value of a business or property beyond any mortgage thereon and liability therein. www.auto-loan-calculator-auto-loan-calculator.com/financing101/glossary-loan-terms. shtml Equity is ownership interest in a corporation, represented by the shares of stock which are held by investors. www.crimes-of-persuasion.com/Crimes/ InPerson / MajorPerson /Prime/prime_glossary. htm the difference between the fair market value and current indebtedness; also referred to as the owner's interest. ozarkmortgage .com/Mortgage_terms.asp History The concept of "law" as opposed to "equity" is an accident of history. The "law courts" or "courts of law" were the courts all over England that enforced the king's laws in medieval times. At the end of the 13th century , the courts of law froze the types of claims they would hear, and the procedure that governed the hearing of those claims. Because the range of legal claims at that time was quite narrow, legal procedures were painfully hypertechnical, and jurors were often bribed , the result was that many meritorious plaintiffs were denied relief. However, remedies could also be obtained through filing a petition with the king, who held residual judicial power; these filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the Chancellor , an important member of the King's Council. At the time, the Chancellor was usually a clergyman and the King's confessor, so he was literally the keeper of the King's conscience. Soon the Chancery , the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery". By the 15th century , the judicial power of the Chancery was recognised. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century . After the end of the 17th century only lawyers were appointed to the office of Chancellor. One area in which the Court of Chancery assumed a vital role was the enforcement of uses , a role which the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between legal and equitable interests. [ edit ] Distinction between law and equity In modern practice, perhaps the most important distinction between law and equity is the remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forebear from acting. Often this form of relief is in practical terms more valuable to a litigant. A plaintiff whose neighbor will not return his only milk cow, which wandered onto the neighbor's property, for example, may want that particular cow back and not just its monetary value. Law courts also enter orders, called " writs " (such as a writ of habeas corpus ) but they are less flexible and less easily obtained than an injunction. Another distinction is the unavailability of a jury in equity. Equitable remedies can only be dispensed by a judge as it is a matter of law and not subject to the intervention of the jury as trier of fact . The distinction between "legal" and "equitable" relief is an important aspect of the American legal system. The right of jury trial in civil cases is guaranteed by the Seventh Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction , declaratory judgment , specific performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity. A final important distinction between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness and flexibility, has only general guides, known as the maxims of equity . Indeed, one of the historic criticisms of equity as it developed was that it had no fixed rules of its own and each Lord Chancellor (who traditionally administered the courts of equity on behalf of the King) gave judgment according to his own conscience. John Selden , an eminent seventeenth century jurist, declared, "Equity varies with the length of the Chancellor's foot." However, as time went on the rules of equity did lose their flexibility and from the 17th Century onwards equity was rapidly consolidated into a system of precedents much like its cousin Common Law . Charles Dickens ' Bleak House parodied the excessive time and expense associated with the Court of Equity in 19th century England . [ edit ] United States In the U.S. today, the federal courts and most state courts have combined law and equity in the same courts, so a plaintiff can get legal and equitable relief in one proceeding. This reflects the position in England where the fusion of law and equity was substantially effected by the Judicature Acts 1873–1875. Equity courts were widely distrusted in the northeastern U.S. following the American Revolution, and the northern states eliminated their equity courts by the late 1700s. However, the mid-Atlantic and southern states were slower to abandon their equity courts. Even today, several of these states still have separate courts for law and equity. Delaware is one notable example, as its Court of Chancery is where most cases involving Delaware corporations are decided. Some other states have separate divisions for legal and equitable matters in a single court. Besides corporate law, which developed out of the law of trusts , areas traditionally handled by chancery courts included wills and probate, adoptions and guardianships, and marriage and divorce. After U.S. courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as joinder , counterclaim , cross-claim and interpleader originated in the courts of equity. The whole notion of equity is deeply confusing for many law students and, to be honest, little has ever been done to make it any clearer. It is particularly troubling in the context of Land And Property Law. Here is an example: what does it mean when a property lawyer says that the burden of a Restrictive Covenant `passes in equity but not in law'? There is no question that a trust is involved; if there were, this would certainly necessitate a consideration of equity. Nor is it true that covenants -- restrictive or otherwise -- are creations of the traditional courts of equity (unlike, for example, wills and trusts, which are). The law of covenants was developed by the ordinary common-law courts. So what does it mean to say that the burden of a restrictive covenant `passes in equity'? The key to understanding this puzzle is to recognize that all a civil court is ever concerned with is deciding which of two competing claims to accept. A restrictive covenant is simply a right over land that one person may want to enforce against another. For the court, the important question is: `is this purported right something that we are prepared to enforce, or not'? In deciding the case, the court will have regard to the common law, to the various statutes that affect the matter, and to any equitable principles that have a bearing. In the case of the restrictive covenant, it was decided in TulkVMoxhay1848 that it would be `inequitable' for the owner of the land burdened by a restrictive covenant to disclaim his knowledge of the covenant and ignore its provisions, even though such a course of conduct would not have been prohibited under the common law of covenants. This case predates the fusion of the jurisdictions of law and equity, and therefore was very much a matter for equity. These days, the court could just as easily enforce the passing of a restrictive covenant `under the rule in Tulk v Moxhay', and not mention equity at all. However, in deference to the equitable history of the rule, we still say `the burden passes in equity', rather than `the burden passes under the rule in Tulk v Moxhay'. In short, it is not that restrictive covenants are creations of equity, or governed by principles of equity, it is simply that the passing of the burden of the covenant was first recognized by a court of equity. So, do we need to talk about `equity' at all in these cases? The answer, for the moment, is `yes'. The reason is that rights and obligations that are `recognized by equity' are enforced in different circumstances than those recognized `at common law'. In the case of restrictive covenants, for example, when such a covenant burdens a plot of land, then the person who buys that plot of land may take it subject to the covenant. If the land is unregistered, then he will be subject to it if it has been registered as a land charge. If the land is registered, the covenant must be entered as a notice for it to be enforceable. However, a legal easement, which is a right recognized traditionally by the common law courts, need not always be registered to be enforceable. Whether the right is legal or equitable makes an enormous difference to its protection and enforcement. Of course, what could be done is to rewrite all the statutes concerned with land and property, such that the rights the courts must enforce are explicitly stated. The LPA1925, for example, gives a list of `legal' rights, and states that anything on that list is recognized only as an `equitable right'. A more modern statute could simply list all rights that must be enforced, and describe how and when they are enforced, and let the principles of equity disappear into the mists of time where they belong. This isn't going to happen any time soon, because it would just be far, far too complicated, and the impact difficult to predict.
- A Trust in which there are SuccessiveInterests, that is, where the trust benefits one person or group of people for a particular length of time, then another. A common form of settlement is to create a trust such that the benefit of an estate is conferred on one person for life (a LifeInterest), with the absolute estate passing to someone else on the death of the person with the life interest. For example, a man may stipulate in his Will that his interest in the family home be held on trust for his wife for the rest of here life, and then divided equally amoing their children. A person who makes a settlement is referred to as a Settlor but, confusingly, the term `settlor' is also used of anyone who creates an ExpressTrust, not just a settlement. A payment to discharge a debt. A vague term used in trust law to mean a fund of money or property. Under this definition, almost any trust can be said to be a settlement.
- The expression rule of thumb has been recorded since 1692 and probably wasn’t new then. It meant then what it means now—some method or procedure that comes from practice or experience, without any formal basis. Some have tried to link it with brewing; in the days before thermometers, brewers were said to have gauged the temperature of the fermenting liquor with the thumb (just as mothers for generations have tested the temperature of the baby’s bath water with their elbows). This seems unlikely, as the thumb is not that sensitive and the range of temperatures for fermentation between too cool and too warm is quite small. It is much more likely that it comes from the ancient use of bits of the body to make measurements. There were once many of these: the unit of the foot comes from pacing out dimensions; the distance from the tip of the nose to the outstretched fingers is about one yard; horse heights are still measured in hands (the width of the palm and closed thumb, now fixed at four inches); and so on. There was an old tailors’ axiom that “twice around the thumb is once around the wrist”, which turns up in Gulliver’s Travels . It’s most likely that the saying comes from the length of the first joint of the thumb, which is about an inch (I remember once seeing a carpenter actually make a rough measurement this way). So the phrase rule of thumb uses the word rule in the sense of ruler, not regulation, and directly refers to this method of measurement.