Law School

The law of restitution is the law of gains-based recovery, in which a court orders the defendant to give up their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court orders the defendant to pay the claimant for their loss. Evolving Meaning. American Jurisprudence 2d edition notes: The word "restitution" was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner and returning to the status quo but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. In summary, therefore, the word "restitution" means the relinquishment of a benefit or the return of money or other property obtained through an improper means to the person from whom the property was taken. Legal vs Equitable Remedy. Restitution may be either a legal remedy or an equitable remedy, "depending upon the basis for the plaintiff's claim and the nature of the underlying remedies sought". Generally, restitution and equitable tracing is an equitable remedy when the money or property wrongfully in the possession of the defendant is traceable (for example, can be tied to "particular funds or property"). In such a case, restitution comes in the form of a constructive trust or equitable lien. Where the particular property at issue cannot be particularly identified, restitution is a legal remedy. This occurs, for example, when the plaintiff "seeks a judgment imposing personal liability to pay a sum of money". This type of damages restores the benefit conferred to the non-breaching party. Put simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it. Differing Views on Restitution. The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of causative events is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative events can also trigger an obligation to make restitution.

In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired. Diminished capacity is a partial defense to charges that require that the defendant act with a particular state of mind. For example, if the felony murder rule does not apply, first degree murder requires that the state prove beyond a reasonable doubt that the defendant acted with premeditation, deliberation, and the specific intent to kill—all three are necessary elements of the state's case. If evidence exists, sufficient to create a reasonable doubt as to whether the defendant because of mental illness or "defect" possessed the capacity to premeditate, deliberate or form the specific intent to kill then the state cannot convict the defendant of first degree murder. This does not mean that the defendant is entitled to an acquittal. The defendant still might be convicted of second-degree murder which only requires that the defendant act with general malice. The defense's acceptance in American jurisdictions varies considerably. The majority of states have adopted it by statute or case decision, and a minority even recognise broader defenses such as "irresistible impulse". Some U.S. states restrict the defense to the charge of murder only where a successful defense will result in a manslaughter conviction instead of murder. Until recently, the Republic of Ireland did not accept the partial defense. The Irish Supreme Court had rejected the existence of the defense in DPP v O'Mahony. The case was recently abrogated, however, by enactment of the Criminal Law (Insanity) Act 2006, effective June 1, 2006. The act, in pertinent part, specifically adopted the partial defense for the charge of murder where a successful defense will result in a manslaughter conviction instead of murder. The defense is to be contrasted with insanity which is a complete but affirmative defense. In most jurisdictions a defendant would be acquitted on the grounds of insanity if the defendant established to the satisfaction of the jury that he suffered from such a mental disease or defect that he was unable to appreciate the consequences of his actions or did not know what he was doing was wrong. As noted a successful insanity defense will result in acquittal although a number of jurisdictions have adopted the guilty but insane verdict. The defense of insanity and diminished capacity although clearly distinct are not inconsistent defenses and both may be at issue in the same case. The critical distinctions are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense—the defendant bearing the burden of proving that he was legally insane.

A trust may have multiple trustees, and these trustees are the legal owners of the trust's property, but have a fiduciary duty to beneficiaries and various duties, such as a duty of care and a duty to inform. If trustees do not adhere to these duties, they may be removed through a legal action. The trustee may be either a person or a legal entity such as a company, but typically the trust itself is not a legal entity and any litigation involving the trust must include the trustee as a party. A trustee has many rights and responsibilities which vary based on the jurisdiction and trust instrument. If a trust lacks a trustee, a court may appoint a trustee. The trustees administer the affairs attendant to the trust. The trust's affairs may include prudently investing the assets of the trust, accounting for and reporting periodically to the beneficiaries, filing required tax returns and other duties. In some cases dependent upon the trust instrument, the trustees must make discretionary decisions as to whether beneficiaries should receive trust assets for their benefit. A trustee may be held personally liable for problems, although fiduciary liability insurance similar to directors and officers liability insurance can be purchased. For example, a trustee could be liable if assets are not properly invested. In addition, a trustee may be liable to its beneficiaries even where the trust has made a profit but consent has not been given. However, in the United States, similar to directors and officers, an exculpatory clause may minimize liability; although this was previously held to be against public policy, this position has changed. In the United States, the Uniform Trust Code provides for reasonable compensation and reimbursement for trustees subject to review by courts, although trustees may be unpaid. Commercial banks acting as trustees typically charge about 1% of assets under management. Beneficiaries. The beneficiaries are beneficial (or 'equitable') owners of the trust property. Either immediately or eventually, the beneficiaries will receive income from the trust property, or they will receive the property itself. The extent of a beneficiary's interest depends on the wording of the trust document. One beneficiary may be entitled to income (for example, interest from a bank account), whereas another may be entitled to the entirety of the trust property when they attain the age of twenty-five years. The settlor has much discretion when creating the trust, subject to some limitations imposed by law. The use of trusts as a means to inherit substantial wealth may be associated with some negative connotations; some beneficiaries who are able to live comfortably from trust proceeds without having to work a job may be jokingly referred to as "trust fund babies" (regardless of age) or "trustafarians"

A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage (with child adoption being a common exception, and the title itself). Civil unions under one name or another have been established by law in several, mostly developed, countries in order to provide legal recognition of relationships formed by unmarried same-sex couples and to afford them rights, benefits, tax breaks, and responsibilities similar or identical to those of legally married couples. In 1989, Denmark was the first country to legalize civil unions, for same-sex couples; however most other developed democracies did not begin establishing civil unions until the 1990s or early 2000s, often developing them from less formal domestic partnerships. While civil unions are often established for both opposite-sex couples and same-sex couples, in a number of countries they are available to same-sex couples only. In Brazil, civil unions were first created for opposite-sex couples in 2002, and then expanded to include same-sex couples through a supreme court ruling in 2011. In the majority of countries that established same-sex civil unions, they have since been either supplemented or replaced by same-sex marriage. Civil unions are viewed by LGBT rights campaigners as a "first step" towards establishing same-sex marriage, as civil unions are viewed by supporters of LGBT rights as a "separate but equal" or "second class" status. Many jurisdictions with civil unions recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in the Civil Partnership Act 2004 Schedule 20. The marriages of same-sex couples performed abroad may be recognized as civil unions in jurisdictions that only have the latter.

In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art, often through hardball legal tactics (frivolous litigation, vexatious litigation, strategic lawsuits against public participation (SLAPP), chilling effects, and the like). Patent trolls often do not manufacture products or supply services based upon the patents in question. However, some entities which do not practice their asserted patent may not be considered "patent trolls" when they license their patented technologies on reasonable terms in advance. Other related concepts include patent holding company (PHC), patent assertion entity (PAE), and non-practicing entity (NPE), which may or may not be considered a "patent troll" depending on the position they are taking and the perception of that position by the public. While in most cases the entities termed "trolls" are operating within the bounds of the legal system, their aggressive tactics achieve outcomes contrary to the origins of the patent system, as a legislated social contract to foster and protect innovation; the rapid rise of the modern information economy has put the global intellectual property system under more strain. Patent trolling has been less of a problem in Europe than in the United States because Europe has a loser pays costs regime. In contrast, the U.S. generally employs the American rule, under which each party is responsible for paying its own attorney's fees. However, after the U.S. Supreme Court's decision in Octane Fitness, LLC v ICON Health & Fitness, Inc on April 29, 2014, it is now easier for courts to award costs for frivolous patent lawsuits. Etymology and definition. The term patent troll was used at least once in 1993, albeit with a slightly different meaning, to describe countries that file aggressive patent lawsuits. The 1994 educational video, The Patents Video also used the term, depicting a green troll guarding a bridge and demanding fees. The origin of the term patent troll has also been variously attributed to Anne Gundelfinger, or Peter Detkin, both counsel for Intel, during the late 1990s. Patent troll is currently a controversial term, susceptible to numerous definitions, none of which are considered satisfactory from the perspective of understanding how patent trolls should be treated in law. Definitions often include a party that does one or more of the following: Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent; Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service; (some argue this could be true even for the original inventor, whereas other draw a clear distinction on this point); Enforces patents but has no manufacturing or research base; Focuses its efforts solely on enforcing patent rights; or Asserts patent infringement claims against non-copiers or against a large industry that is composed of non-copiers. The term "patent pirate" has been used to describe both patent trolling and acts of patent infringement. Related expressions are "non-practising entity" (NPE) (defined as "a patent owner who does not manufacture or use the patented invention, but rather than abandoning the right to exclude, an NPE seeks to enforce its right through the negotiation of licenses and litigation"), "patent assertion entity" (PAE), "non-manufacturing patentee", "patent shark", "patent marketer", "patent assertion company", and "patent dealer".

An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of equitable remedy most commonly used in cases of breach of fiduciary duty. It is an action taken against a defendant to recover the profits taken as a result of the breach of duty, in order to prevent unjust enrichment. In conducting an account of profits, the plaintiff is treated as if they were conducting the business of the defendant, and made those profits which were attributable to the defendant's wrongful actions. This can be rather complex in practice, because the defendant's accounting records must be examined (sometimes by a forensic accountant) to determine what portion of his gross profits were derived from the wrongful act in question. As a result, mathematical exactness is not called for and reasonable approximation is acceptable. Historically an account was not an equitable remedy, but was an action at common law, and is therefore technically an instrument of law, though it arose at a time before the distinction between law and equity was marked. Co-owners in concurrent estates also have the right to an accounting of profits, in order to properly apportion income from the use or leasing of the property. The remedy is also available against strangers to a trust who "dishonestly assist" an express trustee in a breach of the trustee's fiduciary duty. Case law has shown roughly two approaches to assessing the extent of an account of profits: To account not of the entire business but of the particular benefits which flowed to him in breach of his duty; To account for the entire business and its profits, due allowance being made for the time, energy, skill and financial contribution of the fiduciary (the approach in Boardman v Phipps). An injunction is an equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers." A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment. They can also be charged with contempt of court.

Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a mental disorder, a low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law. United Nations agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial. Types of consent include implied consent, express consent, informed consent and unanimous consent. Types. An expression of consent is one that is unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, for example by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given. Implied consent is consent inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Examples include unambiguously soliciting or initiating sexual activity or the implied consent to physical contact by participants in a hockey game or being assaulted in a boxing match. Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it, or in sex, where informed consent means each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and or diseases) they might expose themselves to. Unanimous consent, or general consent, by a group of several parties (for example, an association) is consent given by all parties. Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish the decision an incompetent person would have made if they were competent. In international law, consent involves states, not individuals. Consent is a crucial principle of international law that necessitates the agreement of all relevant parties for any changes in rules to be legally binding. However, some legal scholars propose that a consensus among states, rather than the explicit consent of each state, may be the standard by which a rule is considered obligatory and enforceable.

A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settlor", the party to whom the right is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". A testamentary trust is created by a will and arises after the death of the settlor. An inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may be revocable or irrevocable; an irrevocable trust can be "broken" (revoked) only by a judicial proceeding. The trustee is the legal owner of the property in trust, as fiduciary for the beneficiary or beneficiaries who are or are the equitable owners of the trust property. Trustees thus have a fiduciary duty to manage the trust to the benefit of the equitable owners. They must provide a regular accounting of trust income and expenditures. Trustees may be compensated and be reimbursed for their expenses. A court of competent jurisdiction can remove a trustee who breaches their fiduciary duty. Some breaches of fiduciary duty can be charged and tried as criminal offenses in a court of law. A trustee can be a natural person, a business entity or a public body. A trust in the United States may be subject to federal and state taxation. A trust is created by a settlor, who transfers title to some or all of their property to a trustee, who then holds title to that property in trust for the benefit of the beneficiaries. The trust is governed by the terms under which it was created. In most jurisdictions, this requires a contractual trust agreement or deed. It is possible for a single individual to assume the role of more than one of these parties, and for multiple individuals to share a single role. For example, in a living trust it is common for the grantor to be both a trustee and a lifetime beneficiary while naming other contingent beneficiaries. Trusts have existed since Roman times and have become one of the most important innovations in property law. Trust law has evolved through court rulings differently in different jurisdictions, so statements in this article are generalizations; understanding the jurisdiction-specific case law involved is tricky. Some U.S. states are adapting the Uniform Trust Code to codify and harmonize their trust laws, but state-specific variations still remain. An owner placing property into trust turns over part of their bundle of rights to the trustee, separating the property's legal ownership and control from its equitable ownership and benefits. This may be done for tax reasons or to control the property and its benefits if the settlor is absent, incapacitated, or deceased. Testamentary trusts may be created in wills, defining how money and property will be handled for children or other beneficiaries. While the trustee is given legal title to the trust property, in accepting title the trustee owes a number of fiduciary duties to the beneficiaries. The primary duties owed are those of loyalty, prudence and impartiality. Trustees may be held to a very high standard of care in their dealings to enforce their behavior. To ensure beneficiaries receive their due, trustees are subject to a number of ancillary duties in support of the primary duties, including duties of openness and transparency, and duties of recordkeeping, accounting, and disclosure. In addition, a trustee has a duty to know, understand, and abide by the terms of the trust and relevant law. The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties and neither endebt nor riskily speculate on the trust assets without the written, clear permission of all of the adult beneficiaries.

A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage (with child adoption being a common exception, and the title itself). Civil unions under one name or another have been established by law in several, mostly developed, countries in order to provide legal recognition of relationships formed by unmarried same-sex couples and to afford them rights, benefits, tax breaks, and responsibilities similar or identical to those of legally married couples. In 1989, Denmark was the first country to legalize civil unions, for same-sex couples; however most other developed democracies did not begin establishing civil unions until the 1990s or early 2000s, often developing them from less formal domestic partnerships. While civil unions are often established for both opposite-sex couples and same-sex couples, in a number of countries they are available to same-sex couples only. In Brazil, civil unions were first created for opposite-sex couples in 2002, and then expanded to include same-sex couples through a supreme court ruling in 2011. In the majority of countries that established same-sex civil unions, they have since been either supplemented or replaced by same-sex marriage. Civil unions are viewed by LGBT rights campaigners as a "first step" towards establishing same-sex marriage, as civil unions are viewed by supporters of LGBT rights as a "separate but equal" or "second class" status. Many jurisdictions with civil unions recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in the Civil Partnership Act 2004 Schedule 20. The marriages of same-sex couples performed abroad may be recognized as civil unions in jurisdictions that only have the latter.

Brand protection is the process and set of actions that a right holder undertakes to prevent third parties from using its intellectual property without permission, as this may cause loss of revenue and, usually more importantly, destroys brand equity, reputation and trust. Brand protection seeks primarily to ensure that trademarks, patents, and copyrights are respected, though other intellectual property rights such as industrial design rights or trade dress can be involved. Counterfeiting is the umbrella term to designate infringements to intellectual property, with the exception of the term piracy which is sometimes (colloquially) used to refer to copyright infringement. A more narrow definition of brand protection which focuses on trademark infringement, is sometimes used. Counterfeiting of physical goods that involves trademark infringement is indeed one of the predominant forms of intellectual property infringement. However, both copyright and patent infringement are possible without an associated trademark infringement, and both may result in loss of revenue and of brand equity. Eliminating diversion, gray market, or product theft and resale, are generally considered as part of a brand protection strategy, even though an intellectual property may not be necessarily infringed. A copyright troll is a party (person or company) that enforces copyrights it owns for purposes of making money through strategic litigation, in a manner considered unduly aggressive or opportunistic, sometimes while without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works. Both the term and the concept of a copyright troll began to appear in the mid-2000s. It derives from the pejorative "patent trolls", which are companies that enforce patent rights to earn money from companies that are selling products, without having products of their own for sale. It is distinguished from organizations such as ASCAP, which collect royalties and enforce copyrights of their members.