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Yes and no. Black and white. Peanut butter and jelly. This-‘ n’ -that … Terms that go together.

Words matter. Much depends on what something is called and how it compares to something else. In law, especially, once you decide what something is, you name it. And, different laws apply to different situations with different consequences. So you see, in law, as in life itself, what you call something (or someone) is very important.

Here are some common pairs or threesomes:

1. VESTED RIGHTS AND INTERESTS AND CONTINGENT RIGHTS AND INTERESTS (ALSO CALLED EXECUTORY INTERESTS)

Vested: A fixed, accrued right. For example, damages you won in a trial. Money owed to you for work you have completed.

Contingent: A possible right or interest that is not fixed or actual, but depends on a future event or possibility that may happen. For example, damages you may win in a trial. The amount for which you are suing. Money you plan to earn in your new job. If you’ re suing someone, all other things being equal, it’ s probably better to go after vested interests than contingent interests. That’ s following the (practical/nonlegal) principle of ‘ a bird in the hand . . . ‘

Vested and contingent: These are the principles that underlie all law students’ battles with the Rule against Perpetuities. (Is it because they finally got through this Rule that lawyers charge so much?) That Rule, by the way, states that contingent interests in property must vest not later than twenty-one years after some specific life in being (or in gestation-that is, the nine months of pregnancy. They thought of everything, did they not!). The Rule is designed to free up property and not permit unreasonable restraints to tie property up for years and years, generation after generation. A fun rule to bring up at your next cocktail party with your lawyer! So much for vested and contingent interests…

2. DOMICILE AND RESIDENCE

Domicile: A person’ s permanent home, principal residence. It’s where you vote, write your will, usually pay your taxes. A person has one domicile, but may have many residences.

Residence: A person’ s home. It may be permanent or temporary. A person may have many residences, often depending on how rich he is or how many suitcases he likes to pack. A vacation home is usually a residence, not a domicile. Many rights and responsibilities flow from whether that house or apartment is your residence or domicile.

3. TANGIBLE AND INTANGIBLE PROPERTY

Tangible: Something you can hold, possess, whether it’s real estate or personal property. For example, your house, car, jewels, lawn mower.

Intangible: Something that is evidence of property, but not the real thing! It’ s-ready? -incorporeal. For example, a copyright, easement, or franchise.

4. TANGIBLE AND INCHOATE

Tangible: Complete, vested.

Inchoate: Imperfect, begun, and incomplete. For example, an inchoate instrument (document) is one that must be registered, but isn’ t yet, such as a deed. Before it is registered, it’ s inchoate, valid only between the two parties. After it is registered, it’ s valid against the whole world: everyone is assumed to have notice of it.

5. MANIFEST (ALSO CALLED PATENT) AND LATENT

Patent Manifest: Obvious. Can be seen by normal inspection. For example, when selling your home, you leave all the defects, such as water damage in the basement, for all potential buyers to see. It may be hard for one of them to sue you later because there is water damage in the basement. He knew or should have known about that patent/manifest defect.

Latent: Hidden, not obvious. Can’ t be seen by normal inspection. For example, when buying a car, you do the usual inspection (look under the hood, drive it around, have a mechanic check it over). However, the car turns out to have a defect in the engine that could only be discovered by taking the engine apart. You may have an easier time suing the seller because of this latent defect than you would if suing over a patent defect. In tort law, often the defendant’ s (∆’ s) negligence depends on whether the defect was latent or patent.

6. EXPRESSED AND IMPLIED

Expressed: Unmistakable, clear, specified. For example, an express consent is definite and clear: ‘ I agree to sell my car to youî

Implied: Intended, but not expressed in words. Implied from action or inaction. For example, it is said that driving is a privilege. If I get a license, I am deemed to have implied to consent to obey the rules of the road. This is why, if I refuse a Breathalyzer test, in many states the police may take my license; even if I’ m not guilty of driving under the influence. I had consented to that test. (This law is being closely watched and tested in many jurisdictions at this time.) These terms are also important in waivers and warranties. Different consequences flow from each, whether express or implied.

7. SOLVENT AND BANKRUPT

Solvent: You are solvent when your money and assets exceed your obligations (debts). You have enough money and other assets (things you own) to pay your bills.

Bankrupt: You are bankrupt when your debts (obligations) exceed your assets. All the money and assets you own are not enough to pay your bills as they become due. You can’ t pay your bills and all your creditors are after you. To declare yourself bankrupt, in order to gain protection from creditors or to reorganize your affairs, you have to proceed through Bankruptcy Court.

8. SECURED AND UNSECURED

Unsecured: credit card debt;

Secured: home equity loan, etc.

9. NISI AND ABSOLUTE

Nisi: Unless. Something will happen unless something else occurs. For example, a divorce decree nisi will be finalized after a specified time unless someone shows that it should not be made absolute. Also called ‘ interlocutory.î For example, an interlocutory divorce decree.

Absolute: Final, complete.

9. COERCED AND VOLUNTARY

Coerced: Forced to do something under duress, compulsion. Forced to obey against one’ s will. This will often invalidate an action.

Voluntary: Free of coercion. Assurance to this effect is often required to validate the action. For example, to be effective, a waiver must be knowing and voluntary. These terms are important in wills, in issues of consent, and in criminal confessions, for example. We all know that a will that is proven to have been coerced may be invalid. The same goes for a confession or consent.

10. CONSTRUCTIVE AND REAL

Constructive: Not actual, not real, but accepted legally as if it were. For example, constructive eviction: If a tenant abandons a property that the landlord made uninhabitable (as by turning off the heat and water), then, even though the landlord didn’ t actually throw the tenant out, his actions have done so constructively. There are also such things as constructive trust, constructive notice, and constructive delivery. Constructive possession: In this case you have the power to own the property, but you’ re not there.

Real: Actual, factual, real. For example, an actual eviction (unlike a constructive eviction): ‘ You are hereby notified that after December thirty-first, your lease will not be renewedî . . . or some similar language. Real, actual possession (unlike constructive possession): In this case you are actually on the property or have the property in question. When does it matter? For example, in a criminal case, the driver of a car carrying weapons or drugs in the trunk may argue that he was not in possession of that contraband. In contrast, the prosecution may argue that he was, as he had the keys (the power over the property).

And so it goes…What you call something, is vitally important in law, as in life!
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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Individual Income Taxes

March 28th, 2015 | Posted by admin in The Little Law Book - (0 Comments)

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Income-tax procedures are complex, even after Congressís revisions of the Internal Revenue Code in the name of ‘tax simplification.’ The least a taxpayer can do is learn the language! So, here goes…

For information on IRC please go to the United States Code, Internal Revenue Code (IRC):
The statutes dealing with federal tax law. These include income, estate, gift, excise, and stamp taxes. For the IRC, look in Title 26 of the United States Code (USC). Happy reading! Itís several thousand pages long – of very fine print!

Tax:
A compulsory assessment of a person, corporation, trust, or other taxable entity and property for money to support the government. It is not a voluntary contribution!

Income:
All the moneys you make, including salaries, tips, profits, interest and dividends, lottery prize winnings, commissions, royalties, alimony received, capital gains, rents, gains from the sale of real estate, and everything else! Itís all the money you make in your business, your work, and your investments.
You make it; the government gets a piece of it! But it wasnít always so. Before 1913 an income tax was unconstitutional. Then the Sixteenth Amendment was ratified, which gave Congress the right to tax income ‘from whatever source derived.’

Tax return:
The document a taxpayer provides to the Internal Revenue Service, detailing his income and tax liability.

Internal Revenue Service (IRS):
The federal agency that administers the IRC. It is part of the Treasury Department.

1040 form:
This form, mailed to all taxpayers that filed in the past, provides forms and instructions…. It comes around January first of every year. It’s a New Year’s present we all get!

Here are the basic terms:

Gross income:
The total money you bring in from all sources. In divorce it includes alimony received but not lump-sum payments or child support. It includes valuables you find, but not gifts you get. (The donor may be taxed on gifts to an individual over ten thousand dollars per year. Gift tax is not dealt with here.) It does get complex! Gross income is the biggest sum that appears on your tax return. Luckily, everyone gets to subtract (deduct) from that – bit by bit – to get to the all-important bottom line, the actual taxable income. (Itís from your taxable income that you compute the taxes you owe, based on various formulae and charts…. But we have a long way to go before we get to that!) So, here we go…

Adjustments to income:
These are deductions you can take for various purposes, such as tax- deferred retirement accounts (IRAs), self-employment health insurance deductions (above a specified amount), reimbursed employee business expenses, and alimony (but not child support) you paid to your ex- spouse. (This list is not totally inclusive; there may be other adjustments.)

Total adjustments:
All the deductions you can take as adjustments to income.

Adjusted gross income:
Your gross income minus the adjustments.

Deductions:
Amounts you can deduct from your adjusted gross income. You can do this in two ways:

  • 1. Use the standard deduction: For 2002 taxes this amount was $for a joint return filed by a married couple with dependent child. Note, of course, that 2002 taxes are paid in 2003.
  • 2. Use itemized deductions: You can deduct various expenses. For example, certain expenses are deductible dollar for dollar: state and local income and real estate taxes, charitable gifts, mortgage interest, moving expenses, et cetera. Other expenses are deductible above a certain amount, such as medical and dental expenses, casualty losses and thefts, unreimbursed employee business expenses, tax preparation expenses, and so on. These lists are not all-inclusive; there may be other items. This is where you need all those stubs and careful notes you take all year. If you deduct an expense, you may have to be able to prove that you paid it. Obviously, in choosing between the standard or itemized deduction route, you use whichever gives you the larger deduction (that you can prove).

We move on…

Exemption:
An additional amount you can deduct, depending on the number of dependents you have. You get an exemption for yourself, for your spouse, and for each dependent. The value of an exemption has changed over the years. Itís now around two thousand dollars.

Taxable income (also called Net Income):
The amount of income left after figuring in adjustments and deductions.

Compute the tax:
Take your taxable income and decide how much tax you owe, based on your filing status: Are you single? married? filing a joint return with your spouse or married and filing separately? an individual return? as a head of household? These all lead to different tax rates, which appear in the tax tables. Most favorable is a married, joint return.

Credits:
An amount subtracted from the tax. Credits are now allowed for such items as child and dependent care, elderly and disabled care, and foreign tax credit. Again, this list is not all-inclusive.
Now, unfortunately, you may have to add to the tax owed.

Other taxes:
Taxes including self-employment taxes, Social Security taxes on tip income not reported, and others.

Total tax:
The Bottom Line, at last! This is the tax owed. You subtract what has been withheld by your employer (shown on the W-2 form) and what you paid during the year at this time. If you paid more than you owe, you get a refund. If you owe more than you paid, you owe the difference. ìI owe, I owe, itís off to work I go.î And the cycle begins anew!

OTHER TERMS

Income is divided into capital gains and ordinary income.

    • Ordinary income:
      All income that does not qualify as capital gains income

.

  • Capital gains income:
    Money made on the sale or exchange of capital assets. These include your home, stocks and bonds, et cetera. Anything you sell, excluding what you usually sell to your customers.
    Capital gains are further separated into short-term gains (or losses) and long-term capital gains (or losses). Long term is for something held for more than twelve months; short term is for something held less than twelve months. Over the years Congress has changed the way both of these are taxed. By doing that Congress is engaged in both revenue collection and social planning. Which of these gains gets favorable treatment? What policies are encouraged? Is it investments? savings? growth? In 2002????? long- and short-term gains were taxed at the same rate as ordinary income. In earlier years long-term gains were taxed at lower rates. Itís a fascinating process to watch!

Filing status:
Whether you file as a single person, married person with a joint return, married person filing separately, or head of household. Each status has its own reasons and advantages.

Head of household:
An unmarried taxpayer that maintains a household with at least one dependent and satisfies certain criteria established by the IRS. This, too, is an area of flux, as Congress grapples with the changing criteria in society.
Why does someone want to be considered a head of household instead of a single person? To qualify for the favorable tax rates, of course.

Graduated tax:
Tax system in which the tax rate increases with the taxpayer’s income. The income tax system is a graduated tax. For example, in 2002?????, a married taxpayer filing jointly paid fifteen percent on the first $30,950 of taxable income; twenty-eight percent on income between $30,950 and $74,850; thirty-three percent on income between $74,850 and $155,320; a lower percentage, depending on circumstances, on taxable income over $155,320. Note how the percentages increase as income increases, up to $155,320.

Progressive tax:
Another term for the graduated tax. The social policy goal is to tax the wealthy proportionally more than the poor.

Regressive tax:
The opposite of a progressive tax. Here, the tax rate increases less than the income base. Thus, it falls more heavily on poorer taxpayers.

April fifteenth:
Midnight! Tax returns are due. Taxes are due. A good time to get a temporary job at the IRS!

Automatic extension:
Tax returns are normally due on April fifteenth. You are entitled to extend that time by four months (until August fifteenth) by filing a form and paying your taxes (as you estimate them) by April fifteenth. If your estimates are too low, you will pay the penalties discussed below. The automatic extension does not change the deadline for payment of taxes due.

There are several ways to get in trouble with the IRS. Including:

  • Failure to file a tax return:
    If you fail to file a return, you may be charged a penalty for not (or late) filing, the taxes owed plus interest, and a penalty for late payment of taxes.
  • Failure to pay taxes:
    If you file a return but fail to pay taxes, you may be charged a penalty, along with the taxes owed.
  • Underpayment of taxes:
    If you pay less tax than you owe, you may be charged interest, compounded daily, on all that you owe. The rate is adjusted twice a year and based on the prime rate. It used to be clever to ìborrowî from Uncle Sam because the back interest rates were low. Alas, they no longer are.
  • Underpayment of taxes because of overvaluation of property:
    If you pay less tax than you owe because you overvalued your property, you will pay a penalty depending on how much you overvalued the, property-for example, if you exaggerated a charitable deduction or the basis of (i.e., what you paid for) a capital asset.
  • Understatement of tax liability:
    If you substantially understate the tax you owe, you may be penalized.
  • Negligence penalties:
    If your underpayment is caused by negligence, you may pay a penalty.
  • Fraud penalties:
    If your underpayment is caused by fraud, you may pay a hefty penalty, and often criminal penalties.
  • Criminal penalties:
    If you ‘willfully’ evade or cheat the tax law, penalties include fines, imprisonment for up to five years, or both.
  • Tax avoidance and tax evasion:
    They are not the same things. Tax avoidance is legal. Itís the tax planning you may do to pay the minimum tax legally. Tax evasion is illegal. It is the intentional payment of less tax than is due, by use of fraud, false statements, false records, et cetera. Basically, it is filing a false tax return. It is a crime.

Statute of limitations:
The IRS is given three years from the time you file your return to audit you. If you don’t file a return, they may come after you anytime, as the statute of limitation does not begin to run until you do so. If you file a return but omit items that amount to more than twenty-five percent of your gross income, the IRS has six years to come after you!
If you commit tax fraud, the IRS can come after you anytime. It has no time limits.

Audit:
An examination of a taxpayer’s financial records by an IRS agent.

There are several levels:

  • A correspondence audit is done through the mails. The IRS asks for information and the taxpayer mails it in.
  • An office audit is conducted in the IRS agentís office.
  • A field audit is conducted at the place of business or home of the taxpayer.

Appeal:
If you dispute the results of the audit, you may appeal them to the supervisor, the IRS administrative hearing, or Tax Court or other federal court.

Tax Court:
The Tax Court of the United States has jurisdiction over cases in which the IRS and taxpayers dispute the amount of taxes owed. To get into this court the IRS has to issue a statutory Notice of Deficiency (called ìthe ninety-day letterî) and the taxpayer has to file a petition for a hearing within the specified time.

OTHER TERMS ABOUT TAXES: NOT INCOME

Estate tax:
Tax on the transfer of property at death. Called a ‘transfer tax’ in some states.

Inheritance tax:
Tax on the right to receive property. This exists only in a few states.

Gift tax:
A federal tax on a donor’s gift if it amounts to more than ten thousand dollars per year to any individual. Some states tax the done. There is also a lifetime exemption providing no taxes below the exempt amount.

Tax lien:
The government’s claim on a property as security for taxes due. Yes, they can force you to sell your property to collect the taxes.

And there you have it. The key tax terms in seven pages or less!

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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Jargon: Lawyer’s Shoptalk

March 19th, 2015 | Posted by admin in The Little Law Book - (0 Comments)

Jargon is the special language of a group or activity. Teenagers talk in their own way. For them, ‘ badî means ‘ goodî! Athletes…let’ s not even start on that!

Lawyers, like other professionals and athletes, have their own language, words that have special meaning for them and their colleagues in the business of law. Shoptalk. Jargon. Sometimes this jargon may be off putting and mysterious to others.

From apples to hands, fruit to fishing, black to blue, here are examples of common words with uncommon and precise legal meaning.

1. TWO BITES AT THE APPLE Generally not permitted. It’s the idea that someone will have more than one chance to argue his case before a court; to present his evidence more than once. In law you get one try! Be prepared to give it your best shot!
2. FORUM SHOPPING
Supposedly not permitted. This occurs when a plaintiff (Π) or defendant (∆) tries to have the case heard in a particular court by a particular judge where he thinks the outcome may be better.

3. FRUIT-OF-THE-POISONOUS-TREE DOCTRINE Constitutionally based. Evidence that is obtained through an illegal search, seizure, or illegal interrogation is ‘ fruit of the poisonous treeî and may generally not be used as evidence against a ∆. For example, a gun is illegally seized by the police. The number on the gun may not be used to identify the owner. This doctrine has evolved over the years to respond to the Fourth Amendment rule against unreasonable searches and seizures without properly obtained warrants.
4. CLEAN HANDS The equity doctrine that the court will not grant relief to a person who acted wrongfully (had unclean hands) when he complains of someone else’ s wrongdoing.
5. FISHING EXPEDITION A discovery technique, whereby a party seeks to get information from the other side by asking questions in a general and vague manner. Also, courtroom questions that are vague and broadly phrased, trying to pull in all sorts of material, like a fishing net. Courts may limit the scope of such discovery through protective orders and by disallowing such questions at trial.
6. FIRST IMPRESSION A case that presents the court with a new question of law, so that there may be no precedents on which the court may rely to reach its decision.
7. ARM’ S-LENGTH TRANSACTION A deal negotiated by parties, who are unrelated by blood, marriage, ownership, or other relationship, where each party may be said to act in his/her/its own self-interest. When related parties negotiate deals, they need to meet this standard in order for the deal to be considered a reflection of a fair market value. For example, in tax situations, when a value is placed on property, its price needs to have been reached at ‘ arm’ s length.î
8. MEETING OF THE MINDS Hard to picture, isn’ t it! But it’ s what lawyers call the manifestation, or demonstration, of the mutual agreement necessary to form a contract (K). To be enforceable, a K has to reflect the parties’ mutual intent as demonstrated by their acts and deeds at the time.
9. RIPENESS DOCTRINE Has nothing to do with fruit. This is a constitutional doctrine. Courts will not decide cases before they have matured, before there is a concrete controversy that must be adjudicated. Courts do not deal with hypothetical cases or with parties who do not have an actual interest in the outcome of the case. It’ s not enough to have a dispute that may be interesting or socially important. Also, if the dispute has vanished or been resolved (gone beyond ripe!), courts won’ t hear it. Then we’ re into the mootness doctrine.
Now for some color words!

Black

Black letter law: Basic legal principles, usually accepted by judges and lawyers. The roots. The foundation.

Blacklist: Illegal. A list of persons, whom the lister wishes to single outs for ostracism, boycotts avoidance, and negative publicity. It was used by employers against certain workers who participated in legal union activities; by businesses listing persons who are bad credit risks, insolvent, et cetera.

Blackmail: A crime, a form of extortion. Threatening to harm a person or his property, to accuse him of a crime, to expose damaging information about the person (even if true), or to use other similar threats in order to demand (extort) money.

Black market: Buying, trading, and selling goods and services ‘ under the table,î illegally, without declaring any income on the transactions-and without paying any taxes on them. Or, buying, trading, and selling goods that are illegal-contraband.

Blue

Blue chip stocks: Stocks that generally are considered to be less risky than other stocks. They are considered to be safer investments because they represent old, well-known, and well-established companies. Initially, the stocks may have sold at a hundred dollars per share- like the casino’ s blue chips! Thus, the name.

Blue laws: Local or state laws that mandate the closing of certain businesses on Sunday.

Blue sky laws: State regulations of the sale of stocks. Designed to protect citizens from fraudulent companies.

Red

Red herring: In a legal argument, an issue raised that is interesting and possibly important-but has no relevance at all to the issues of the case. It’ s a diversionary tactic. Also, a prospectus sent to the SEC (Securities and Exchange Commission) before a stock issue. It may be copied in red – for information only!

Redlining: Unlawful as discriminatory. It’ s a way to limit credit to homeowners based in certain neighborhoods. It does not take into account the creditworthiness of the specific potential property owner. Redlining used to show up on city maps – in red, often singling out minority neighborhoods.

White

White-collar crime: Nonviolent crimes committed by corporations, businesses, executives, public officials, and management types – all sorts of people who wear white-collared shirts and suits. These crimes may involve corruption, fraud, bribery, extortion, and other commercial crimes.

 

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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Law and Equity

March 5th, 2015 | Posted by admin in The Little Law Book - (0 Comments)

These two words specify the two legal systems we actually have.

Law is the set of rules, written by legislatures, and enforced by society. Rules are enforced by authority, such as police, courts, and so on.

Equity is a system of justice administered according to standards of fairness (as opposed to standards imposed by specific laws or rules). Generally, equity follows the law. This means that applicable laws will be followed where they exist; where there are no applicable laws, principles of equity will be followed. Since most of this book (and law books in general) focuses on law, these few pages will discuss equity.

1. Historically in England, sometimes enforcement of laws and legal rules was unfair or harsh because the rules were administered in an inflexible manner. That is, they were applied rigidly, even if the outcome was, in fact, unfair. To overcome this inflexibility, equity courts (also called courts of chancery) were established, based on broad principles of justice and fairness.

For example, it is unfair for one person to gain something of value at the expense of another. Thus an equitable principle arose: unjust enrichment. It may require someone to restore goods or money to another person if not doing so would lead to an unfair result.

If a contractor is in the middle of building a house but stops, the equitable principle of quantum meruit requires that the house owner pay for the work already completed. There is no specific law that forces these payments. But it seems fair, doesnít it? Itís a principle of fairness-thus, equity!

Or, if your neighbor is about to chop down your favorite tree, or you are very concerned about a new building project next door to your little house, you may seek an injunction to halt it. That is, you may seek a court order to order a stop, and prevent a future injury. In the old days, injunctions were issued by equity courts. Today, they may be issued, as well, by law courts.

Today, in most states, law and equity courts are merged. In some states equity courts still exist. They may be called equity or courts of chancery.

2. Law courts generally deal with situations after damage has been done- for example, when a personís rights have been violated or a law has been broken. In contrast equity courts may intervene to avoid damage, to prevent harm, and to promote fairness.

3. The main difference between law and equity courts lies in the relief they may order. Law courts may award money damages or punish wrongdoers. Equity courts deal with situations when money damages will not suffice. Sometimes the court may order a, potential wrongdoer to stop doing something by issuing an injunction. (for example, to stop dumping trash; or the court may order a person to do something through a mandatory injunction; or, perhaps, the court may order someone to stop doing an action for a brief period of time, by a TRO, a temporary restraining order-for example, an order to stop going to an ex-spouseís house.) Other equitable principles include unjust enrichment.

No one should unfairly gain over another party. Whatever such gains exist must be returned to the rightful owner.

Quantum meruit.
Paying for what has been earned; not getting away with not paying because of some later occurrence, such as a breach of K. A court may order specific performance as an equitable remedy to a breach of K. That is, the court may order the party to do what he agreed to do, such as sell a particular house or special antique to the buyer rather than simply pay money damages. The reason? There may be no other property just like it. Money damages alone would not suffice, would not ìmake the buyer whole.

The term equity is also used in the following situations: In a divorce a court may divide property between the spouses as the court believes to be fair, by equitable distribution, rather than by following specific rules, if that may lead to an unfair result.

Here ís a test: Is it law or equity?

  1. Judge awards fifty thousand dollars in damages to John in a malpractice suit.
  2. Judge orders Sam to sell his house to Bill.
  3. Jane sues Tom for sending the wrong merchandise.
  4. Mary seeks a court order to bar her ex-husband from her house.
  5. Neighbors go to court to stop noisy Saturday night parties down the street.

 

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Torts

January 29th, 2015 | Posted by admin in The Little Law Book - (0 Comments)

Civil Law and Lawsuits

A funny word. In French (where it originated) a tort means a “wrong”. But in the U.S. most people probably think it means a chocolate cake with icing, when they think of it at all! A torte! But, alas, no.
tort

A TORT IS A CIVIL WRONG. 

Tort law is part of civil (noncriminal) law. It concerns lawsuits (not prosecutions). These suits arise from injuries (wrongs) committed by one person, a group, or organization(s) against another or others. Torts can be intentional or not. They can be purposeful or negligent.

Here’s what happens. You get hurt. Or,

someone treats you badly or unfairly. You want to “sue the bastards.” Tort law answers the question: Is there someone to sue? Or, putting it in legalese, is there a remedy for every tort? Torts deal with civil lawsuits, excluding breaches of contract (K’s). While torts are not part of criminal law, remember that the same action by

a defendant (D) can bring about both a criminal prosecution and a civil lawsuit.

For example, if Bill steals your TV, that’s the crime of theft. It is also the tort of conversion. The district attorney can prosecute for the theft. You can sue for the conversion. Bill is the tort-feasor (doer of the tort!). With this as background, what are some torts?

TYPES OF TORTS

Torts are divided into basic types:

1. Negligence
2. Intentional harm to a person
3. Intentional harm to tangible property
4. Strict liability
5. Nuisance
6. Harm to economic interests
7. Harm to intangible property interests

1. NEGLIGENCE

Negligence includes car accidents, slip-and-fall cases, malpractice, personal injury, and some product liability cases. The variety of negligence is very wide, and new torts are created all the time. While it is a common word, negligence has legal meaning. What is it? How does negligence become a tort? We start from the idea that negligence is carelessness, not being reasonable, et cetera. Here’s how a tort in negligence is analyzed.

Every tort has three elements:

A. The D owes a legal duty to the plaintiff (P).
B. The D breaches that duty.
C. The breach causes injury either as a direct result of the negligent act or somewhat more indirectly, but foreseeable; that is, the injury was reasonably predictable following the negligent act.
Legally, we say there is a proximate cause between the breach and the injury.

These look like simple words-not too technical. But let’s define what they mean in this context. First, what is a duty? One person’s obligation to another. Duty is based on the relationship of the people involved. For example:

  • employer and employee;
  • innkeeper and guest;
  • business person/owner and customer;
  • host and social visitor;
  • manufacturer and consumer;
  • property owner and licensee, guest, trespasser, or trespasser who is younger than twelve years old
  • person in control of an instrument that can harm (e.g., a car) and a passenger or pedestrian or fellow driver.

All these cases have a different standard of care, of duty. It’s different if the mailman slips on your steps or if a trespasser does. But, basically, the duty is to act reasonably. What is reasonable? (Ah, the sixty-four-thousand dollar question!)

Reasonable conduct:

An important concept in tort law but, as you can imagine, hard for P and D to agree upon. Lawyers use the “reasonable person standard”. What would a reasonable person do? Note: You generally don’t have a duty to a stranger. Thus, as harsh as it may be, if you see a stranger in serious trouble, you don’t have a duty to help. However, laws are changing in this field. In fact, if you help, you better be reasonable! Because, by helping, you assume a duty!

Good Samaritan statutes:

Because it seems harsh to let doctors, nurses, and other medical professionals go about their way without helping strangers in distress, many states have enacted Good Samaritan statutes. The name comes from the Bible. These laws protect from lawsuit doctors and other medical professionals who aid an injured stranger in an emergency at the scene of an accident or injury. The duty of reasonable care does not apply. In such a case the P can sue the doctor (D) only if he was reckless or grossly negligent.

The reasonable person standard is an objective, not subjective, standard. A jury can decide if you were reasonable. “I was doing the best I could” or “I thought I was being reasonable” is not defenses if they do not meet the community’s reasonableness standard. Standards are applied to the type of person you are. A reasonable adult. A reasonable lawyer. A reasonable scientist or shopkeeper. Persons with greater knowledge are held to a higher standard. The reasonableness standard does not apply to children unless they are doing adult activities. Thus, if a sixteen-year-old drives a car, he had better be reasonable.

These standards change all the time. For example, right now the community’s standard for drinking and driving is changing dramatically in this country. It used to be viewed as almost funny; now, you’d better not do it, you’d better have a “designated driver” if you’re planning to go out and drink, and on and on. All these new standards are being applied differently than they were twenty or even ten years ago. Next, what is a breach? It is a failure to act reasonably; a failure to use the amount of care a reasonable person would use in that situation.

Negligence occurs if you do something below the standard of what a reasonable person would do in those circumstances. What’s the measure? A community standard or statute. Let’s say that you are careless with someone to whom you owe a duty. Is that a tort? Not necessarily. Not unless the person is hurt by your negligence. If no one got hurt, you got lucky! Finally, what is causation? Something that causes something else. To figure out if there is the required causation in your case, you have to analyze it in several steps.

1. You have to prove a “but for” relation between the breach of duty and the injury. But for the breach, there would be no injury. For example, the floor in the store is slippery. You fall on it and break a bone. The slippery floor probably caused your fall. 
If P gets hurt but the injury was not caused by D’s action, then there is no tort. For example, you are in the store with your child. He runs away from you. You run after him and fall and break a bone. The floor was not slippery. The floor probably did not cause your fall. Probably no negligence on the store’s part.
2. The injury has to be the direct result of the negligent act or of foreseeable intervening forces. The injury has to be caused proximately by the breach of duty. This means it has to be reasonably anticipated that if someone does X, someone can get hurt. If you drive and drink, you may cause an injury. If there is a banana peel on the floor in the store, someone may fall, et cetera. This is the proximate cause requirement. 
If something else happens between the breach and the injury, it’s hard to prove that the breach caused the injury. For example, if your neighbor takes down a wall and water comes into your basement as a result, it may be a tort. But if water doesn’t come in for five years, it’s hard to prove proximate cause because so many other things intervened during the five years. Or if there is an unusual flood up the street at the time the wall was removed, your neighbor may be able to prove that it was the flood, not the wall that caused the water in your basement. That might be what’s termed “an act of God.” Then you have no one to sue! 

Other important terms in negligence torts:

Invitee: Someone you have, expressly or by implication, invited to your property. He may be a customer, servant, and friend. Generally, you are responsible for exercising reasonable care for his safety against latent defects on that part of your property to which he was invited. In addition you have a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.

For example, in a store, invitees can come into the selling area but not the back, which is posted “FOR EMPLOYEES ONLY.” There they would be trespassers.

Licensee: A person who comes onto your property with permission, but without invitation. Such a person has a right to be there but is there for his benefit, not yours: for example, a door-to-door salesman.

In the old common law you owed these folks less duty of care. Now, by statute in many states, the duty is the same as for invitees.

Trespasser: Someone on your property without invitation or license; someone who commits a trespass on your property. Generally, you owe him less care than an invitee or licensee but will be responsible for conduct that is grossly negligent. Thus you can’t set an unmarked trap or leave a large unprotected hole on your property.

An exception is for children under twelve years old. You may be held responsible in their case for maintaining an attractive nuisance  as dangerous “artificial condition” on your property that a child may play on. If the child gets hurt, you may be liable, even if he is trespassing. For example, a swimming pool with an open gate or no fence at all. On the other hand, a tree the child climbs is probably not an “artificial condition,” and you’d probably not be liable for an injury.

Res ipsa loquitur: Lovely Latin term to keep in your back pocket just for fun! Literally, this doctrine means, “the thing (res) speaks (loquitur) for itself (ipsa). ” It’s used in trying to prove that the D was negligent. Here, one can infer negligence without actually proving it, if (a) the accident would not have happened without negligence and (b) the D had exclusive control of the thing that injured the P. If the doctrine applies, the P has made a prima facie case and the jury cannot give a directed verdict for the D

Product liability: A manufacturer and seller of a defective product may be liable in negligence. In some cases they are liable also in strict liability.

Now for the other types of torts:

2. INTENTIONAL HARM TO A PERSON

A. Assault: The D intends to hurt or scare the P and the P believes he is in danger of being hurt at that moment.

If I point a gun at you and it scares you, that’s an assault, even if it turns out to be a toy gun.

If I say, “Don’t you ever do that again or I’ll kill you,” that is not an assault: words alone don’t do it. Here there is no immediate threat of harm.

In an assault the D does not need to touch the P.

B. Battery: The D intends to offensively touch or hurt the P without the P’s consent, and does so.

Even if the P is asleep, and the D offensively touches him, that’s a battery – because it was without consent.

When you sign a medical release before surgery, you are, in effect, consenting to the doctor’s touching you. If he does the surgery to which you consented, that’s not a battery. If he does more or different surgery that may be a battery-because he went beyond the scope of consent. Complicated, isn’t it?

C. False imprisonment: The D intends to keep the P from freely moving about in an area that the P can’t leave. If I’m driving my car with you in it, and you want to get out, and I don’t stop, that may be false imprisonment. An intentional tort.

If a storekeeper keeps me on the suspicion of shoplifting but the suspicion was unreasonable, that may be false imprisonment.

D. Intentional mental distress: The D intentionally or recklessly causes P severe emotional distress.

If I know you are petrified of snakes and I leave one in your desk, that may be grounds for a suit based on intentional infliction of emotional/mental distress.

3. INTENTIONAL HARM TO TANGIBLE PROPERTY

A. Trespass to land: An intrusion by D onto P’s land. No harm or intent needs to be proven. For example, if your neighbor builds a fence but it happens to sit on part of your property that�s a trespass, even if he did it unintentionally.

B. Trespass to chattels: The D interferes with P’s right to possess his property. For example, the D takes P’s property, uses it, perhaps damages it.

C. Conversion: An act that interferes with the owner’s use of his property. Basically, it’s the tort version of the crime of theft or destruction of property, which is serious enough so that the D should pay its full value to the P.

4. STRICT LIABILITY

If injured, the P does not need to prove any negligence on the D’s part. With products he must prove that the product was not safe for its intended use and that he was injured by it. The duty to warn is often applied to potentially dangerous products. For example, crashworthiness of cars; hazards and side effects of medications. This is why cigarettes have warning labels. Even ladders now have warning signs on them! Are the products safe for their intended use?

Ultra hazardous activity: Owning certain types of animals, or engaging in certain types of activities. For example, firearms, if not commonly fired in the particular community or area. If anyone gets hurt, the D may be liable, even if he was not negligent.

5. NUISANCE

The D unreasonably interferes with the P’s enjoyment of his property. This is where the neighbor’s noisy parties come in! Or unsavory odors. Or flights overhead. Courts balance the type of area you are in, the nature of the harm, and the social value/utility of that activity. Airplanes must fly but parties can be quieter.

6. HARM TO ECONOMIC INTERESTS

A. Deceit:

Occurs if the D knowingly lies about an important fact that he intends to induce the P to rely on and which, in fact, the P does rely on. For example, right before trying to sell his house, the D patches over evidence of major water damage so that potential buyers can’t see the damage.

B. Negligent misrepresentation:

It’s like deceit, but applies to people in their trade or business or profession. It occurs if the D negligently provides false information to the P, a customer, on which the P relies to his detriment.

C. Interference with contractual relationships:

The D intentionally interferes with an ongoing business relationship between the P and someone else (the third party).

D. Intentional interference with advantageous relations:

The D interferes through tortious means (duress, fraud) where he had no business being in the first place. For example, the D fraudulently induces a change in a testator’s will in which the P was to be a beneficiary.

7. HARM TO INTANGIBLE PROPERTY INTERESTS

A. Defamation: Occurs if D communicates information about P to others which is not truthful and hurts the P�s reputation. If the D was negligent, in not doing enough research or background checks, he may be liable.

Libel: If the defamation occurs in writing.

Slander: If the defamation is spoken. With famous people, public officials, or other people in the “public domain,” only defamation done with malice (ill will) may be a tort.

B. Malicious prosecution:

If the P starts a criminal prosecution against the D without probable cause and with malice and the D wins, he may turn around and sue the P for malicious prosecution.

C. Invasion of privacy:

A wrongful intrusion into a person’s private life, whether by others or by the government. For example, such an invasion may occur if unreasonable publicity is given to someone’s private life. “It’s not anyone else’s business!” If someone takes your name or uses your picture without permission, especially for commercial use, that may be such an invasion.

Computers have brought the issue of the right to privacy to the fore: How much may government, industry, and other institutions lawfully know about us?

And there you have them: many of the major torts that exist in the early 21st century. Stay tuned as new ones emerge to meet changing social, economic, and personal needs. The law is ever changing and organic.

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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