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Criminal Law

September 11th, 2014 | Posted by admin in Criminal Law - (0 Comments)

Felonies, Misdemeanors & Violations

Criminal law is the stuff of TV shows, of good guys and bad guys. There are many different kinds of crimes which can be classified in different ways.

  • Examples of violations: Littering, jaywalking, creating a public nuisance, some zoning violations.
  • Examples of traffic violations: Parking violations, and some minor moving violations, such as speeding or passing on the right.
  • Examples of misdemeanors: Simple assault, driving under the influence of alcohol, petty larceny, trespassing, writing a bad check.
  • Examples of felonies: Robbery, burglary, assault with a deadly weapon, rape, murder, perjury, killing or injuring someone while driving under the influence of alcohol or drugs.

Petty offenses do not generally appear on a person’s criminal record, and are generally punishable by a fine, not imprisonment.

Misdemeanors, on the other hand, go on a person’s criminal record and are generally punishable by a fine and/or confinement in jail or reformatory.

Felonies also go on a person’s criminal record. A felon, a person convicted of a felony, loses many civil rights, including the right to vote, and may be punished bya fine and/or more than a year in prison or penitentiary, or by death (capital punishment), in states having the death penalty.

Treason, the most severe crime, goes on a person’s criminal record, and is punishable by death, or by prison for not less than five years.

As for the places to which criminals are confined, here’s a general rule: Jails and reformatories are usually reserved for less severe crimes and often are run by the city or county. Prisons and penitentiaries are usually used for more severe crimes and are run by states or by the federal government.

Larceny: In How Many Ways Can Someone Steal?

Larceny is a crime made up of several elements: the taking of property (something) which belongs to someone else, without his consent and with the intent of permanently depriving him of it. Also known as theft, stealing, and purloining. The taking–from one place to another’is called “asportation.”

  • Grand Larceny: If the property is valuable (usually over two hundred dollars).
  • Petit Larceny: If the property is of low value’as found in the state statute.

There are many types of larceny, as Larcenous Larry and Vicky Victim will now demonstrate:

  • Robbery: If Larry takes something from Vicky directly (off her body) or within her sight, with force, and against her will. Purse snatching is a form of robbery. Pickpocketing is not a form of robbery because, although Larry takes something out of Vicky’s pocket, she is unaware of it and not frightened.
  • Armed Robbery: If Larry has a lethal weapon when he robs Vicky and if Vicky believes he has one.
  • Extortion: If Larry uses threats or other coercion to get Vicky’s money’but does not threaten her personal safety, as in robbery. If, for example, he tells her he will reveal facts about her past (even if true) and she pays him to be quiet, this is extortion. It’s also known as blackmail.
  • Burglary: If Larry takes Vicky’s property from her house.
  • Breaking and Entering is the crime Larry commits if he enters Vicky’s house with the intent to commit a crime there.
  • Embezzlement: If Larry has property entrusted to him but then takes it for himself through fraud. Here, even if he intends to give it back, it’s still embezzlement. For example, this crime may happen among employees who have money entrusted to them but falsify records, deposits, et cetera, to take the money.
  • Pilferage: If Larry takes small amounts (often, again and again) so his larceny won’t be discovered. This crime is a problem many stores have among their employees who pilfer goods.
  • Shoplifting: If Larry takes displayed goods from a store while ‘shopping’ there.
  • False pretenses: Getting money or property by lying with the intent to defraud. Also called ‘misrepresentation.’ For example: submitting phony bills; the “white collar” crime of fraud; submitting “padded” bills for reimbursement. A salesman’s misrepresentation of the facts about a product, which induces a customer to buy it; e.g., if Larry, salesman, lies to Vicky about what’s in the product and she buys it’based on his statements.
  • Misrepresentation is making a statement that is designed to deceive or milead someone. Bad checks are a form of false pretenses called “uttering.” Larry writes a bad check if he knows there is no money in his account to cover it.
  • Receipt of stolen property: If Larry’s friend gets the goods and knows they are stolen. The crime can also occur if a stranger buys the goods from Larry, while knowing they are stolen.

Mistake of fact is not larceny: If Larry takes Vicky’s property but thinks it is his own, there is no larceny because he had no intent to deprive Vicky of her property. This may happen at a restaurant, if Larry takes the wrong umbrella.

Note: The key to larceny crimes is the intent to deprive the owner of his property. However, this is not true for embezzlement, as shown above. Note also that the key to receipt of stolen property is knowledge that the property is ‘hot.’

Homicide

Homicide is the killing of one person by someone else. Here are some examples.

  • –A shoots B and kills him.
  • –C kills D while driving under the influence of alcohol (DWI).
  • –E kills F in self-defense.
  • –G fights with H. H falls, hits his head, and dies.

These are all homicides. But, are they all criminal homicides? If so, are they examples of murder or manslaughter?

Punishment for the different homicides varies greatly.  Note that of all homicides, first-degree murder is the most serious and punished most severely.

There are three broad categories of homicides:

Justifiable

  • –by a soldier in wartime.
  • –by court order (such as execution).
  • –when necessary to prevent a felony, stop a riot, catch a felon.

Excusable

  • –as a result of an accident or a mistake.
  • –as a result of ordinary negligence. (As in a car accident. But see below for gross negligence.)
  • –by someone who has no legal capacity to commit the crime (such as a child).

Criminal

  • –is neither justifiable nor excusable.

State laws divide criminal homicide into different categories. While these differ from state to state, a generalized pattern is summarized below.

Punishment

Crime – Indictment – Trial/Guilty Plea/Plea Bargain – Conviction – Punishment

Punishment is the penalty for a crime. The court’s punishment order is called the sentence. ”I sentence you to ”

Note that the terminology for the person punished changes during the criminal sequence. Before the indictment he is the “accused.” After the indictment, before the conviction, he is the “defendant” (D). Following conviction (or guilty plea), he is the “convict.”

Criminal law sometimes is called penal law (punishment law).

Jails and prisons are sometimes called “penal institutions.” An example from history: Australia was used by the British government as a penal colony for prisoners. Apparently it was preferable to send prisoners ‘down under’ than to incarcerate them back home!

Punishments include:

  • Capital Punishment: The death penalty. (Your head is your “capital.”)
  • Corporal Punishment: Physical punishment, such as lashing. (Your “corpus” is your body.)
  • Imprisonment/Incarceration: Confinement in a jail or prison (or anywhere against your will, actually).
  • Determinate Sentence/Indeterminate Sentence: A determinate sentence is for a fixed time period, as determined by statute. The statue lists the number of months or years of incarceration for specific crimes. Indeterminate sentences have fixed minimum and maximum time periods within that range. The actual length of time a person may serve is set by the statutes, officials, and the prisoner’s behavior. You’ve heard of “time off for good behavior.” This may occur with an indeterminate sentence.
  • Parole: Release from jail or prison after serving part of a sentence. The release is conditional on the convict’s behavior outside prison. If he violates the terms of his release, it may be revoked. In that case he “violates parole” and may be reincarcerated.
  • Fine: A sum of money a convict pays to the court. (This money is different from damages, which a defendant pays a plaintiff.)
  • Restitution: An order that the convict resotre the victim’s property. Example: by paying for repair of damage or by the return of specific items.
  • Suspended sentence: A prison term that a convict does not actually serve in prison. Instead, he is placed on probation. If he violates the terms of probation, then he is sent to serve the term.
  • Probation: Letting the convict serve his term outside prison, during good behavior and, usually, under the supervision of a probation officer. If the convict violates the terms of his probation, he may be incarcerated. Note that generally parole occurs after a convict has been incarcerated for some time, while probation occurs instead of incarceration. The word probation comes from the Latin: proving something. It appears also in “probating” a will (proving its authenticity); or a “probationary” period at work to see if the new employee will work out well. In the case of criminal law it gives a convict a chance to prove his good behavior. The word parole has a Latin root that means to speak. Here the convict promises (says) he will behave himself. Interesting difference.

Following a court’s sentencing order the executive branch (the governor of a state or the President of the U.S.) sometimes (rarely) steps in to change that order, through the power of executive clemency. There are three types:

  • Pardon: The best! Declares the person innocent. Wipes the slate clean. Clears the person’s criminal record.
  • Commutation of sentence: Reduces the punishment. Example: by shortening theprison term or changing a sentence of capital punishment to imprisonment.
  • Reprieve: A temporary suspension in the punishment. Example: to give the convict time to settle his business, deal with family matters, and so on, before he starts a prison term. It’s also a stay of execution of a pending death penalty, often to give a prisoner more time for further appeals to court.

Finally, remember, the Constitution limits punishments in key ways:

  • The Eight Amendment guarantees that there shall be no “cruel and unusual punishment.” The definition of “cruel and unusual” changes over time and is left for the courts to define. Now it generally means punishment that is so disproportionate to the crime that it offends our notions of fundamental fairness. That’s pretty clear, isn’t it! But it means you probably won’t go to jail for jaywalking, and torture is considered “cruel.”
  • The Fifth Amendment protects defendant’s against double jeopardy. This means that if a defendant is found innocent by a court, he may not be tried again for the same offense. However, if the first trial ended in a hung jury (no verdict), he may be tried again. He was not acquitted. If the first case was in state court, he may be tried for the same offense in federal court. Remember, too, that even if a defendant is acquitted in a criminal case, he may still be sued civilly by a victim(s) or other plaintiff(s). That would not be a case of double jeopardy. The language of the Amendment is picturesque: nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Marriage and Divorce

September 4th, 2014 | Posted by admin in Family Law - (0 Comments)

GETTING TOGETHER

Marriage is a K (contract). John and Mary promise to fulfill the duties of a married couple as imposed by law. These include support, inheritance, and consortium. Consortium is the legal right of one spouse to the company and affection of the other.

John and Mary marry after fulfilling the state’s requirements (including age and mental competence), obtaining a license, passing blood tests, and having a ceremony with witnesses. Their marriage is a “special” K because John and Mary cannot dissolve (end) it. Only a court can.

Common law Marriage: If John and Mary live in a state that recognizes this type of marriage, they may enter into it as follows: They can live together (cohabit); and they can “hold themselves out” as if they were married, by telling others they are married and referring to themselves as married people. Common law marriages do not require ceremonies or licenses. And contrary, to popular belief, the cohabitation period need not always be as long as seven years. It varies from state to state.

Prenuptial agreement: Also called premarital or antenuptial agreement: A K that two people may write and agree upon. It details their rights and duties, especially with respect to property and debts. The goal of a prenuptial agreement is to minimize future disputes in case of divorce or when one spouse dies.

Living together: From a general legal standpoint this arrangement is not a marriage. John and Mary live together. Period. Recently, however, some states have held that express or implied agreements between John and Mary during their life together are enforceable after they break upSeparation: A legal term that refers to John and Mary’s agreement to live apart although they are married. They may enter into an agreement about all aspects of their separation.

Note: if John or Mary later breaches their agreement, the court will treat it as a breach of K.

SPLITTING UP

Legal separation: A legal term that refers to a court order. If John and Mary cannot agree on terms of a separation, either of them may sue the other in court. If the court orders the terms of separation, the order is a “legal separation.” It may also be called “temporary orders.”

Note: if John or Mary later breaches this order, the breach will be treated as contempt of court.

Desertion or abandonment: The legal result of John’s or Mary’s leaving the other without an agreement between them. Desertion is a ground, or legal cause, of fault divorce. Check state law, as each has a different description of what constitutes desertion.

Remember that laws of marriage and divorce are established by the states because of the Tenth Amendment to the Constitution. These amendment reserves to the state or people all powers not delegated by the Constitution to the federal government. There is no federal marriage and divorce law.

DIVORCE, DISSOLUTION, ANNULMENT

Divorce or dissolution: The end of a marriage by court decree. Dissolution is the term more often used in no-fault actions. Following a divorce, John’s and Mary’s rights and duties are specified from the date of the final decree.

Annulment: A court decree stating that John and Mary never legally married because they didn’t fulfill the requirements of marriage. Perhaps John or Mary fraudulently deceived the other.

Following an annulment, John and Mary revert to their premarital status. They are single, have never been married.

Fault divorce: What may result if John or Mary sues the other for divorce, claiming that the spouse is “at fault.” Note that the fault needs to be proven.

Different grounds of fault include:

  • adultery
  • bigamy
  • conviction of a crime involving moral turpitude (an act that is so vile-or base-that it contravenes basic moral standards)
  • cruelty (mental or physical)
  • desertion or abandonment
  • habitual drunkenness
  • insanity
  • nonsupport

Contested divorce: If John and Mary cannot agree on the terms of their divorce. Their case will be argued, or contested, in court.

Uncontested or default divorce: When John and Mary agree on the terms or one of them does not appear in court. The court finalizes the agreement or default.

No-fault divorce or dissolution: A divorce that is decreed in a state with no-fault divorces. In this type of divorce couples may be able to meet the standards of proof easily. A marriage can be ended for the following reasons, or grounds:

  • irreconcilable differences that have led to an irretrievable breakdown of the marriage (John and Mary cannot get along).
  • separation for a specified time.

Quickie divorce: What occurs if John or Mary goes to a state or country with a short residency requirement for divorce for the purpose of obtaining the divorce.

This kind of divorce dissolves the marriage only. It cannot deal with custody or property issues, because that state or country has no jurisdiction over those issues.

ISSUES IN A DIVORCE/DISSOLUTION ACTION

Alimony: Money for support and maintenance to which one spouse is entitled from the other spouse after a divorce or separation.

The court usually awards an amount based on need. Payments often end if the receiving spouse remarries or if either spouse dies.

Palimony: Support (money) that may be awarded to John or Mary, even if unmarried, after they stop living together. (They must have had an enforceable agreement between them.) This new doctrine in the law exists only in some states.

Child custody: John and Mary will have the rights and duties of care and control of their child following a divorce or separation. Legal custody is the right and duty to make vital decisions about the child’s education, medical care, religious training, and similar issues.

There are two basic arrangements:

  • Custody in one parent with visitation rights in the other. Usually, the child lives with one parent (the custodial parent) while the noncustodial parent may visit with the child.
  • Joint custody. John and Mary both have legal custody. The child may live with each of them at different times. The court usually decides contested custody cases on a standard of the “best interest of the child.” As you can imagine, this is often a difficult standard to apply. The court considers such factors as the past history of childcare, the fitness of the parent(s), and, in some cases, the child’s wishes.

Child support: Payment for the child’s care and support from the noncustodial parent to the custodial parent. These payments usually end at the child’s age of majority, or when he completes his education, or when he becomes emancipated.

Division of property: What property do John and Mary get after a divorce? Property includes anything that can be owned, such as a house, land, jewelry, money, stocks, patents, and rights (e.g., a copyright on a book).

There are two major division patterns in the different states….

  • Common law (separate property): John and Mary may each have their own (separate property) and may hold property together, such as a car or a house (marital property).In a divorce they (or the court) decide how to divide all the different categories of property, according to equitable distribution.
  • Community property: John and Mary generally continue to hold what they had before the marriage. However, all property earned during the marriage is owned by both. In a divorce this community property is divided equally between them. The premarriage property generally remains with John or Mary, as it was.

Divorce decree: The court order that ends the marriage. It determines all the issues between John and Mary.

Interlocutory decree (decree nisi): A temporary decree, issued during the proceedings. There is generally a waiting period before the decree can become final.

Final decree: Issued at the end of all proceedings. Any breach of the decree is treated as contempt of court.
from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Small Claims Court Tips

August 28th, 2014 | Posted by admin in Uncategorized - (0 Comments)

Let’s say Sam takes eight shirts to the cleaners. Five of them are fine, but three are ruined. The cleaners will assume no responsibility for the damage. What can Sam do?

Sue buys a new table. When she gets home, she discovers many scratches on it. The store won’t take it back.

Betsy’s landlord won’t return her security deposit after she moves out of the apartment.

PICTURE ONE OF THE ABOVE

In these cases, and countless others like them, what can folks do? They have several options, such as: they can try to settle the problem with the other side, forget about it, or sue in small claims court.
Small claims courts are designed to provide an informal, fast, and inexpensive way to settle disputes. They are used in uncomplicated civil cases that involve relatively small dollar amounts. Generally, a person can sue someone without using a lawyer. However, it may be worthwhile to consult a lawyer before proceeding with a case, to assess the case and strategies to use.

The first and very basic issue is: Do you have a case? That is, do you have a “cause of action?” Remember, just because something bad happened does not mean it’s anyone’s fault legally. Just because you are (even rightfully) mad doesn’t mean the court can help you.

The basic question is: Has the D done a legal wrong for which the P can sue? Usually, this means that you have to sue on a legal theory, such as negligence, breach of K, implied warranty, and so on.

Every state sets its own maximum for which someone can sue in small claims court. These maximums range up to $7,500 or so. Check state limits! To find out the maximum in any state, call the clerk of the small claims court.

As well, on the web, use a search engine to take you to “small claims court,” where many states provide information.

In these courts the judge or arbitrator decides the entire matter: both the facts involved and the applicable law. In some states parties may appeal these decisions to higher courts; in others they may not. Here is a summary of the procedure involved

1. The plaintiff (P) fills out a complaint or claim against the defendant (D). This document states the basic facts and what the P seeks to win. Many times the court has a standard form that should be used. Contact the clerk to get one.

2. The P pays a filing fee to the court. If the D loses, he may have to reimburse the P later.

3. The P gets a hearing date and a case number from the clerk.

4. The P gets the complaint delivered to the D, usually by having the clerk mail it with a summons or by having the sheriff deliver it. The summons orders the D to answer the complaint by a certain date. It is the P’s responsibility to have the complaint delivered by any means necessary, as he cannot proceed in court without that. Remember the basic due process notice requirements in American law!

5. The D may offer to settle the case or may, in some states, file his answer (also called “response”). In some states the D need not file an answer at all. At this time the D may choose to settle or use the answer to prepare his case.

6. Either party may ask the clerk for a continuance (postponement) if he/they cannot appear in court on the assigned date.

7. On the assigned date, both parties should appear in court at the proper time. Otherwise they risk losing by default. As in sports, if one side fails to appear, s/he may lose and get a default judgment against her or him.

8. Both parties should prepare their case by having the appropriate documents and witnesses. Documents may include sales slips, photos of damage, advertising that was relied on, letters, and anything else that may prove the case.

9. Depending on the judge or arbitrator and state where the case is heard, both parties may be allowed to present their story (with the P going first), present witnesses, question the witnesses of the other side, answer the questions posed by the judge or arbitrator, and so on.

10. The judge or arbitrator may announce the decision at the end of the hearing or may send it within a few days. If the P wins, he will get an order, called a judgment, against the D for a specific amount of money or another form of payment. The D now becomes the judgment debtor.

11. Now starts the challenge of collecting on that judgment!

Remember: Procedures vary from state to state. Visit a small claims court in your area to see how the process works. It’s the best way to prepare for your day in court.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Contracts

August 21st, 2014 | Posted by admin in Business Law - (0 Comments)

Let’s go for it! It’s a deal! It’s what lawyers call, “A meeting of the minds.”

Contracts happen all the time. They are everywhere! How many did you participate in today? Did you shop in a store? ride the bus? buy a car? eat at a restaurant? work at your job? attend a movie? Why are these common everyday events K’s? In each, one party makes an “offer” requiring “consideration” that the other “accepts.” For example, the store displays goods for sale (an offer) that the buyer wants and pays (acceptance) for (consideration): Voila! There’s a K.

What is a K?

It’s an agreement between two or more parties that requires each to do or give something in exchange. Once made, it is enforceable in court. In an important way it’s an example of people making their own laws within the guidelines established by statute, courts, and tradition. In most cases, K’s involve the exchange of goods or services for money.

1. OFFER

An action or indication by one party (the offeror) that he is willing to make an agreement with another party (the offeree). If accepted, it will create a K. A demonstration (manifestation) of the intent to make a deal.

The manifestation can be in many forms: spoken or written or displayed by action. When you walk into a restaurant and sit down, the owner offers to feed you and you indicate your acceptance by sitting down, ordering your meal, and eating it. Not a word about K’s is spoken! But you’ve entered into one. You’ve clearly demonstrated – manifested – your intention.

Another example of an offer: “I (offeror) will sell you (offeree) my car for three thousand dollars.”

Example of a non-offer: “I am thinking of selling my car for three thousand dollars.” Even if you say you’ll pay me the three thousand there’s no K because I never offered to sell it!

An offer needs four specific and definite terms: the who, the what, the price, the time.

The who: Both parties must have the mental capacity to make a K. That is, they should be adults with the ability to understand what they are doing. (Contracts made with children or mentally incompetent adults are not covered in these materials. They are generally voidable.)

The what: The subject of the offer must be definite and specific and both parties should know what they are contracting about. If I thought I was selling the red car and you thought you were buying the blue one, there may be no deal. This is the mutuality requirement of K’s. Lawyers talk about the “meeting of the minds.” Parties have to agree about the same thing and the same terms.

The price: The price or other consideration must be definite and specific.

The time: the offeror specifies the length of time the offer remains open. For example, “If I don’t hear from you by Friday, the deal’s off.” If no time is specified, the law implies a reasonable period of time, depending on circumstances.

2. ACCEPTANCE

An offeree agrees to the terms of the offer. “Yes, I’ll buy that car for three thousand dollars next week.” Your sitting down at the restaurant is an acceptance. Remember: silence can be a form of acceptance.

3. REJECTION

An offeree does not accept the terms of the offer, either by an outright rejection or by a counteroffer.

4. COUNTEROFFER

A change in the offer made by the offeree. For example, “I’ll buy your car for twenty-five hundred dollars,” or “I’ll buy your car if you wash it.” This is not an acceptance; it’s a counteroffer. It does not create a K. Rather; it creates a new offer, this time by the (former) offeree.

5. CONSIDERATION

Something of value exchanged for a promise or performance. “I’ll pay you twenty dollars for mowing my lawn.” Usually, consideration is required to make the promise binding and the K enforceable in court. It’s the quid pro quo (“something for something”) of the deal. In this case twenty dollars and the mowing are the – mutual considerations.

6. CONTRACT (K)

The simplest definition is that it is an agreement between two or more parties. Each makes a promise that, if breached, is enforceable in court.

Contrary to popular belief, K’s may be written or oral. So long as there is an offer, an acceptance, consideration, and other terms are satisfied (e.g., the parties have the required mental capacity, the subject of the K is not illegal, and so on), there can be an enforceable K, whether written or not.

But some specific K’s must be in writing to be enforceable. These include:

A. K’s dealing with real estate, except for a lease for less than a year.
B. K’s for the sale of goods for more than five hundred dollars.
C. K’s for a job that lasts more than one year.
D. K’s in consideration of marriage, such as prenuptial agreements.
E. K’s that promise to pay someone’s debts.
In general and for these K’s in particular; an important reason to “get it in writing” is that writing memorializes the transaction. Memory can fail. If an argument arises later about any aspect of the K, the parties can prove their positions more easily if they are written down. “But you said”, “No, I didn’t,” or “Gee, I don’t remember,” aren’t very persuasive.

7. GIFT

A promise of performance given without anything of value in exchange. Usually, gifts or the promise of gifts are unenforceable.

Exception: A gift may be deemed a K under certain situations, in a quasi-K. The law may imply a K in order to promote fairness and justice. Unlike an explicit (actual) K it is not based on the parties’ mutual intent. Rather, it’s based on the principle that a party has to pay for what he receives. For example, if a stranger finds your dog and feeds him for several days before you find the stranger and your dog, a K for the room and board for the dog may be created. Besides being grateful for the return of your “best friend,” you may have to pay for his care.

Did anyone say this would be easy? It may not be easy, but there is a certain beauty and fairness in it, isn’t there? We move on!

8. PROMISSORY ESTOPPEL

An equitable (equity) doctrine that makes a promise binding, even if there was no consideration, if that is the only way to promote justice.

For example: Uncle Bob promises nephew Jim one thousand dollars after he graduates. Jim spends the money on a new TV before he actually gets the money. Later, Uncle Bob doesn’t pay. If Jim’s reliance on the promise was reasonable (Uncle Bob had kept his promises in the past!), then Uncle Bob may be estopped (prevented) from denying the existence of a K, even though, in fact, one had not been made. (Uncle Bob had, in fact, simply promised a gift.) The promise may be enforced, up to the amount already spent the amount relied upon. These cases rely on the facts: Was the reliance reasonable? Did Jim graduate? Et cetera

9. PERFORMANCE

The putting into effect of what the K specifies; the enactment of what’s promised whether to buy a car, paint a house, start work for the other party, et cetera.

10. ENFORCEABLE

A K that the law will enforce. You may take a K to court to seek a remedy if you believe the K was breached. Obviously, whether you win or not depends on the facts you present.

11. VOID K

A K, though it may have the necessary terms, is not enforceable. For example: An agreement to do an illegal act, such as to kill a person, or to buy contraband or to pay gambling debts (unless in a jurisdiction where gambling is legal), is void. It was never an enforceable K. Another fancier way to state this: It was null and void ab initio. It had no value from the beginning.

12. VOIDABLE K

A K that may be canceled by one side. For example, a K with a minor may be voidable, if the minor chooses to cancel it. The minor may choose to do this at any time while he is still a minor. If he doesn’t cancel it, then it may be enforced.

A K that is grossly unfair to one side (generally a consumer) may be voided by a court (not the parties themselves.) This is an equity principle, codified under the Uniform Commercial Code (UCC). It may be voided because it would be unfair, unconscionable, to enforce it. This is an example of the doctrine of unconscionability.

Other voidable K’s are those made by an unintentional mistake or through intentional fraud or misrepresentation or duress. Again, the dispute becomes a factual one.

13. BREACH

A failure to carry out the terms of the contract. In legalese, it’s “wrongful nonperformance.

14. REMEDIES

When a breach occurs, remedies are used to right the wrong, to compensate the party whose K was breached. Remedies in law and equity include:

15. RESCISSION

The cancellation of a K and the returning of the parties to their situation before the K, the status quo ante. The parties, not performing the K, may have to return items or moneys exchanged. This type of returning is called “restitution”-returning things to the owner to “make him whole,” as he was before the K, so there is no unjust enrichment by either party. This is equity principal. The law does not like one party taking an unfair advantage of another. In equitable terms it’s simply not fair!

16. RESTITUTION

See rescission above.

17. SPECIFIC PERFORMANCE

Forcing one party to perform according to the K. This remedy may exist in real estate cases, where a seller may be forced to sell the property to the buyer. The theory is that this is the only way to make the buyer whole, as no two properties are the same. Usually, you can’t force a person to perform a job or service. That’s slavery! It was outlawed after the Civil War by the Thirteenth Amendment!

Isn’t it interesting how these various laws merge and interplay? Yes, what we learned in civics actually works!

18. ACCORD AND SATISFACTION

The parties may agree to settle for less than bargained for in the K. This is a type of forgiveness. In effect a new K is -entered into. For example, the buyer might accept the goods later than promised without demanding a penalty.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Laws we already know

August 14th, 2014 | Posted by admin in Uncategorized - (0 Comments)

If you ever watch children at play, you realize they know a lot about the law. Fairness. Taking turns. Possession.   There are lots of laws we already know.

Many laws are complex and technical, and so is the special language associated with them. It is the main purpose of this book to explain some important areas of law and the language lawyers use–that is, LAW WORDS. But let us start the ball rolling at a simpler level. Happily, there are principles of law that are truly obvious, based on shared truths and common sense adages. Below is a rather random collection of some of these truisms and examples of how they operate in the legal system.

1. ASK! If you don’t speak up, you don’t get. Or, as mother said, “The worst thing that can happen is that they’ll say no.” In law, as in life, silence may be interpreted as acquiescence. That is, if you don’t speak up when something goes wrong or a transaction occurs, the other party may reasonably believe that you consented to whatever happened and may rely on that consent. There’s even a word for this: Lying by. Following that you may be estopped (barred) from denying that the transaction occurred.

For example, the defense of condonation exists in fault divorce. This is a conditional pardon. If one spouse commits a marital offense known to the other spouse and they continue to cohabit, it is said that the other spouse has forgiven the offense by condonation.

If you receive a monthly bank statement that contains an error (such as a forgery or an error in summarizing your account) and you do nothing, after a while you may be said to have waived your right to correct it. Changes may be made later, but it may be much harder to make them. Also, of course, all lawsuits are versions of this truism. When the plaintiff (P) begins a lawsuit, he is seeking a remedy from the defendant (D). So you see, Mother was right again!

2. Possession is nine tenths of the law. When children shout, “It’s mine!” they already know this truth. The law generally favors keeping matters as they are, maintaining the status quo. All things being equal, a person in possession of something is more likely to keep it. A competitor for the object would have to prove that there is a need for change. This leads to another related truism: Don’t fix it if it ain’t broke! Leave well enough alone!

For instance, in a divorce situation, the parent with custody has a better chance of maintaining it than the other parent does in obtaining it. The house owner who keeps the last payment from the contractor until every last detail is completed to satisfaction knows this rule. Generally, it’s easier to keep money than to fight for it, as the contractor may need to do.

3. It was only an accident! I didn’t mean to . . .

Kids say this all the time. They know it matters. In the law, for example, this principle appears all the time. Here’s where children understand instinctively this fundamental basis of the American legal system: A person’s intent is very important in determining the effect of lots of actions, from crimes to torts to contracts. Often, if it was “only an accident,” the action may be negligence; if it was “on purpose” (intentional), it may be a crime.

4. First come, first served. Or, “The early bird catches the worm.” Or, “He who hesitates is lost.”

For example, if you have a security interest in someone’s property, you have to protect that interest by perfecting it. This involves several steps; including providing notice-notifying the entire world that you have a security interest in the property, the collateral. In this process it pays to be first, because the courts will use your date of perfection to give you priority over other perfected interest holders, should a dispute arise later. This process leads to the term “Race to the courthouse.”

Then, too, there is the equitable principle of laches. You can’t sleep on your rights. If you have a case you wish to pursue, you’d better do it! Don’t wait too long. Otherwise, the other side may raise the defense of laches, as it would not be fair to permit you to go forward after you waited too long. On the other hand…

5. Let a sleeping dog lie. Leave well enough alone. For instance, if enough time passes, the other side may not be able to sue you – may have exceeded the statute of limitations may provide you with the laches defense (see above), may simply run out of steam, or their best witness may disappear or . . . whatever!

6. Quit while you’re ahead. This principle is very important in negotiations. If you win a point, get it in writing and leave. Don’t wait around for the other side to change its mind. This leads to another adage…

7. There’s many a slip between the cup and the lip. Thus, lawyers will always tell you to “get it in writing.” If you don’t get it in writing, “signed, sealed, and delivered,” lots of unexpected changes can happen in the meantime. This is roughly equivalent to Yogi Berra’s famous slogan; “It ain’t over till it’s over.”

8. It’s not fair! Again, kids are right on the money! This oft-heard children’s lament underlies the American legal system. From equal protection to due process the system is designed to assure as much fairness as possible. Then, too, remember there is the entire body of law called equity that has as its purpose the pursuit of fairness, the assurance of justice.

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

Post to Twitter