Law School

The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.  The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such. However, the doctrine has proven problematic because of its implications for contracts made for the benefit of third parties who are unable to enforce the obligations of the contracting parties. In England and Wales, the doctrine has been substantially weakened by the Contracts (Rights of Third Parties) Act 1999, which created a statutory exception to privity (enforceable third-party rights).  Third party rights.  Privity of contract occurs only between the parties to the contract, most commonly contract of sale of goods or services. Horizontal privity arises when the benefits from a contract are to be given to a third party. Vertical privity involves a contract between two parties, with an independent contract between one of the parties and another individual or corporation.  If a third party gets a benefit under a contract, it does not have the right to go against the parties to the contract beyond its entitlement to a benefit. An example of this occurs when a manufacturer sells a product to a distributor and the distributor sells the product to a retailer. The retailer then sells the product to a consumer. There is no privity of contract between the manufacturer and the consumer.  This, however, does not mean that the parties do not have another form of action: for instance, in Donoghue v Stevenson – a friend of Ms. Donoghue bought her a bottle of ginger beer, which contained the partially decomposed remains of a snail. Since the contract was between her friend and the shop owner, Mrs. Donoghue could not sue under the contract, but it was established that the manufacturer was in breach of a duty of care owed to her. Accordingly, she was awarded damages in the tort of negligence for having suffered gastroenteritis and "nervous shock". 

Defamation (also known as calumny, vilification, libel, slander, or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. In several countries, including South Korea, a true statement can also be considered defamation. Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel. In the United States, false light laws protect against statements which are not technically false but are misleading. In some jurisdictions, defamation is also treated as a crime. The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the International Covenant on Civil and Political Rights as well as urging that "State parties  should consider the decriminalization of libel". In Saudi Arabia, defamation of the state, or a past or present ruler, is punishable under terrorism legislation. Overview. As of 2017, at least 130 UNESCO member states retained criminal defamation laws. In 2017, the Organization for Security and Cooperation in Europe (OSCE) Office of the Representative on Freedom of the Media issued a report on criminal defamation and anti-blasphemy laws among its member states, which found that defamation is criminalized in nearly three-quarters (42) of the 57 OSCE participating states. Many of the laws pertaining to defamation include specific provisions for harsher punishment for speech or publications critical of heads of state, public officials, state bodies and the state itself. The OSCE report also noted that blasphemy and religious insult laws exist in around one third of OSCE participating states; many of these combine blasphemy and religious insult with elements of hate speech legislation. In Africa, at least four member states decriminalized defamation between 2012 and 2017. The ruling by the African Court of Human and Peoples’ Rights in Lohé Issa Konaté v the Republic of Burkina Faso set a precedent in the region against imprisonment as a legitimate penalty for defamation, characterizing it as a violation of the African Charter on Human and Peoples’ Rights (ACHPR), the International Covenant on Civil and Political Rights (ICCPR) and the treaty of the Economic Community of West African States (ECOWAS). Countries in every region have moved to advance the criminalization of defamation by extending legislation to online content. Cybercrime and anti-terrorism laws passed throughout the world have led to bloggers appearing before courts, with some serving time in prison. The United Nations, OSCE, Organisation of American States (OAS) and African Commission on Human and Peoples’ Rights Special Rapporteurs for Freedom of Expression stated in a joint declaration in March 2017 that "general prohibitions on the dissemination of information based on vague and ambiguous ideas, including 'false news' or 'non-objective information', are incompatible with international standards for restrictions on freedom of expression...and should be abolished."

Modern interpretation of the power to tax incomes. The modern interpretation of the Sixteenth Amendment taxation power can be found in Commissioner v Glenshaw Glass Company (1955). In that case, a taxpayer had received an award of punitive damages from a competitor for antitrust violations and sought to avoid paying taxes on that award. The Court observed that Congress, in imposing the income tax, had defined gross income, under the Internal Revenue Code of 1939, to include: gains, profits, and income derived from salaries, wages or compensation for personal service ... of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. (Note: The Glenshaw Glass case was an interpretation of the definition of "gross income" in section 22 of the Internal Revenue Code of 1939. The successor to section 22 of the 1939 Code is section 61 of the current Internal Revenue Code of 1986, as amended.) The Court held that "this language was used by Congress to exert in this field the full measure of its taxing power", and that "the Court has given a liberal construction to this broad phraseology in recognition of the intention of Congress to tax all gains except those specifically exempted." The Court then enunciated what is now understood by Congress and the Courts to be the definition of taxable income, "instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." The defendant in that case suggested that a 1954 rewording of the tax code had limited the income that could be taxed, a position which the Court rejected, stating: The definition of gross income has been simplified, but no effect upon its present broad scope was intended. Certainly punitive damages cannot reasonably be classified as gifts, nor do they come under any other exemption provision in the Code. We would do violence to the plain meaning of the statute and restrict a clear legislative attempt to bring the taxing power to bear upon all receipts constitutionally taxable were we to say that the payments in question here are not gross income. Tax statutes passed after the ratification of the Sixteenth Amendment in 1913 are sometimes referred to as the "modern" tax statutes. Hundreds of Congressional acts have been passed since 1913, as well as several codifications (for example, topical reorganizations) of the statutes (see Codification).

Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense of the land. Most property ownership in common law jurisdictions is fee simple. In the United States, the land is subject to eminent domain by federal, state and local government, and subject to the imposition of taxes by state and/or local governments, and there is thus no true allodial land. Some states within the U.S. (notably, Nevada and Texas) have provisions for considering land allodial under state law, and the term may be used in other circumstances. Land is "held of the Crown" in England and Wales and other jurisdictions in the Commonwealth realms. Some land in the Orkney and Shetland Islands, known as udal land, is held in a manner akin to allodial land in that these titles are not subject to the ultimate ownership of the Crown. In France, while allodial title existed before the French Revolution, it was rare and limited to ecclesiastical properties and property that had fallen out of feudal ownership. After the French Revolution allodial title became the norm in France and other civil law countries that were under Napoleonic legal influences. In October 1854, the seigneurial system of Lower Canada, which had been ceded from France to Britain in 1763 at the conclusion of the Seven Years' War, was extinguished by the Seigneurial Tenures Abolition Act of October 1854, and a form similar to socage replaced it. Property owned under allodial title is referred to as allodial land, allodium, or an allod. In the Domesday Book it is called alod. Historically, allodial title was sometimes used to distinguish ownership of land without feudal duties from ownership by feudal tenure which restricted alienation and burdened land with the tenurial rights of a landholder's overlord or sovereign.

In criminal law, a conspiracy is an agreement between two or more persons to commit a crime at some time in the future. Criminal law in some countries or for some conspiracies may require that at least one overt act be undertaken in furtherance of that agreement, to constitute an offense. There is no limit on the number participating in the conspiracy and, in most countries, no requirement that any steps have been taken to put the plan into effect (compare attempts which require proximity to the full offense). For the purposes of concurrence, the actus reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted or cannot be traced. Finally, repentance by one or more parties does not affect liability (unless, in some cases, it occurs before the parties have committed overt acts) but may reduce their sentence. An unindicted co-conspirator, or unindicted conspirator, is a person or entity that is alleged in an indictment to have engaged in conspiracy, but who is not charged in the same indictment. Prosecutors choose to name persons as unindicted co-conspirators for a variety of reasons including grants of immunity, pragmatic considerations, and evidentiary concerns. United States. Conspiracy has been defined in the United States as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. A conspiracy does not need to have been planned in secret to meet the definition of the crime. Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific person to establish an illegal agreement. Instead, usually the law requires only that the conspirators have agreed to engage in a certain illegal act. In most U.S. jurisdictions, for a person to be convicted of conspiracy, not only must he or she agree to commit a crime, but at least one of the conspirators must commit an overt act (the actus reus) in furtherance of the crime. However, in United States v Shabani the U.S. Supreme Court ruled that this "overt act" element is not required under the federal drug conspiracy statute, 21 U.S.C. section 846. The conspirators can be guilty even if they do not know the identity of the other members of the conspiracy.

Unconscionability is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, because the consideration offered is lacking, or is so obviously inadequate, that to enforce the contract would be unfair to the party seeking to escape the contract. Unconscionability is determined by examining the circumstances of the parties when the contract was made, such as their bargaining power, age, and mental capacity. Other issues might include lack of choice, superior knowledge, and other obligations or circumstances surrounding the bargaining process. Unconscionable conduct is also found in acts of fraud and deceit, where the deliberate misrepresentation of fact deprives someone of a valuable possession. When a party takes unconscionable advantage of another, the action may be treated as criminal fraud or the civil action of deceit. For the defense of unconscionability to apply, the contract has to have been unconscionable at the time it was made; later circumstances that make the contract extremely one-sided are irrelevant. There are generally no standardized criteria for determining unconscionability; it is a subjective judgment by the judge, not a jury, and is applied only when it would be an affront to the integrity of the judicial system to enforce such a contract. Upon finding unconscionability a court has a great deal of flexibility on how it remedies the situation. It may refuse to enforce the contract against the party unfairly treated on the theory that they were misled, lacked information, or signed under duress or misunderstanding; it may refuse to enforce the offending clause, or take other measures it deems necessary to have a fair outcome. Damages are usually not awarded. Procedural unconscionability is seen as the disadvantage suffered by a weaker party in negotiations, whereas substantive unconscionability refers to the unfairness of terms or outcomes. Most often the former will lead to the latter, but not always. The existence of the procedural unconscionability without substantive unconscionability may be sufficient to set aside a contract, but the latter, by itself, may not. As with issues of consideration, the court's role is not to determine whether someone has made a good or bad bargain, but merely whether that party had the opportunity to properly judge what was best in their own interests. Accord and satisfaction is a contract law concept about the purchase of the release from a debt obligation. It is one of the methods by which parties to a contract may terminate their agreement. The release is completed by the transfer of valuable consideration that must not be the actual performance of the obligation itself. The accord is the agreement to discharge the obligation and the satisfaction is the legal "consideration" which binds the parties to the agreement. A valid accord does not discharge the prior contract; instead it suspends the right to enforce it in accordance with the terms of the accord contract, in which satisfaction, or performance of the contract will discharge both contracts (the original and the accord). If the creditor breaches the accord, then the debtor will be able to bring up the existence of the accord in order to enjoin any action against him. If a person is sued over an alleged debt, that person bears the burden of proving the affirmative defense of accord and satisfaction.

A dignitary tort is a type of intentional tort where the cause of action is being subjected to certain kinds of indignities. Historically, this category of torts was often covered by the writ of trespass vi et armis. Historically, the primary dignitary torts were battery, assault, and false imprisonment, as each claimed harm to a person's human dignity. A cause of action could be brought for battery, for example, even if no injury was done to the plaintiff, so long as the contact would be offensive to a reasonable person. Under modern jurisprudence the category of dignitary torts is more closely associated with secondary dignitary torts, most notably defamation (slander and libel), false light, intentional infliction of emotional distress, invasion of privacy, and alienation of affections. In some jurisdictions, the phrase is limited to those torts which do not require physical injury or threat of physical injury, limiting the class to only those secondary incidents. The only non-intentional act classified as a dignitary tort is negligent infliction of emotional distress, although this is also sometimes classified as simply another form of negligence. The right of publicity, sometimes referred to as personality rights, is the right of an individual to control the commercial use of one's identity, such as name, image, likeness, or other unequivocal identifiers. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction). Classification. Personality rights are generally considered to consist of two types of rights: the right of publicity, or the right to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar (but not identical) to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right. A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how their right of publicity is commercialized by a third party, if at all. Often, though certainly not always, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

History. Constitutional. Article 1, Section 8, Clause 1 of the United States Constitution (the "Taxing and Spending Clause"), specifies Congress's power to impose "Taxes, Duties, Imposts and Excises", but Article 1, Section 8 requires that, "Duties, Imposts and Excises shall be uniform throughout the United States." The Constitution specifically stated Congress' method of imposing direct taxes, by requiring Congress to distribute direct taxes in proportion to each state's population "determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons". It has been argued that head taxes and property taxes (slaves could be taxed as either or both) were likely to be abused, and that they bore no relation to the activities in which the federal government had a legitimate interest. The fourth clause of section 9 therefore specifies that, "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Taxation was also the subject of Federalist No. 33 penned secretly by the Federalist Alexander Hamilton under the pseudonym Publius. In it, he asserts that the wording of the "Necessary and Proper" clause should serve as guidelines for the legislation of laws regarding taxation. The legislative branch is to be the judge, but any abuse of those powers of judging can be overturned by the people, whether as states or as a larger group. The courts have generally held that direct taxes are limited to taxes on people (variously called "capitation", "poll tax" or "head tax") and property. All other taxes are commonly referred to as "indirect taxes," because they tax an event, rather than a person or property per se. What seemed to be a straightforward limitation on the power of the legislature based on the subject of the tax proved inexact and unclear when applied to an income tax, which can be arguably viewed either as a direct or an indirect tax. Early federal income taxes. The first income tax suggested in the United States was during the War of 1812. The idea for the tax was based on the British Tax Act of 1798. The British tax law applied progressive rates to income. The British tax rates ranged from 0.833% on income starting at £60 to 10% on income above £200. The tax proposal was developed in 1814. Because the treaty of Ghent was signed in 1815, ending hostilities and the need for additional revenue, the tax was never imposed in the United States. In order to help pay for its war effort in the American Civil War, Congress imposed the first federal income tax in U.S. history through passage of the Revenue Act of 1861. The act created a flat tax of three percent on incomes above $800 ($23,000 in current dollar terms). This taxation of income reflected the increasing amount of wealth held in stocks and bonds rather than property, which the federal government had taxed in the past. The Revenue Act of 1862 established the first national inheritance tax and added a progressive taxation structure to the federal income tax, implementing a tax of five percent on incomes above $10,000. Congress later further raised taxes, and by the end of the war, the income tax constituted about one-fifth of the revenue of the federal government. To collect these taxes, Congress created the Office of the Commissioner of Internal Revenue within the Treasury Department. The federal income tax would remain in effect until its repeal in 1872.

In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Most property is alienable, but some may be subject to restraints on alienation. In England under the feudal system, land was generally transferred by subinfeudation, and alienation required license from the overlord. When William Blackstone published Commentaries on the Laws of England between 1765-1769, he described the principal object of English real property laws as the law of inheritance, which maintained the cohesiveness and integrity of estates through generations and thus secured political power within families. In 1833, Justice Joseph Story in his Commentaries on the Constitution of the United States linked landowners' jealous watchfulness of their rights and spirit of resistance in the American Revolutionary War with the system of American institutions which recorded and clarified land title and expanded landed markets. Other early American legal commentators who praised the simple and relatively inexpensive conveyancing system in the new United States included Zaphaniah Swift, Daniel Webster and James Kent. Some objects are now regarded as being incapable of becoming property and thus termed inalienable, such as people and body parts. Aboriginal title is one example of inalienability (save to the Crown) in common law jurisdictions. A similar concept is non-transferability, such as tickets. Rights commonly described as a license or permit are generally only personal and are not assignable. However, they are alienable in the sense that they can generally be surrendered. An estate in land is an interest in real property that is or may become possessory. It is a type of personal property and encompasses land ownership, rental and other arrangements that give people the right to use land. This is distinct from sovereignty over the land, which includes the right to government and taxation. This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general. In property law, the rights and interests associated with an estate in land may be conceptually understood as a "bundle of rights" because of the potential for different parties having different interests in the same real property.

An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur. Attempt to commit a particular crime is a crime, usually considered to be of the same or lesser gravity as the particular crime attempted. Attempt is a type of inchoate crime, a crime that is not fully developed. The crime of attempt has two elements, intent and some conduct toward completion of the crime. One group of theories in criminal law is that an attempt to commit an act occurs when a person comes dangerously close to carrying out a criminal act, and intends to commit the act, but does not commit it. The person may have carried out all the necessary steps (or thought they had) but still failed, or the attempt may have been abandoned or prevented at a late stage. The attempt must have gone beyond mere planning or preparation, and is distinct from other inchoate offenses such as conspiracy to commit a crime or solicitation of a crime. There are many specific crimes of attempt, such as attempted murder, which may vary by jurisdiction. Punishment is often less severe than would be the case if the attempted crime had been carried out. Abandonment of the attempt may constitute a not guilty defense, depending partly on the extent to which the attempt was abandoned freely and voluntarily. Early common law did not punish attempts; the law of attempt was not recognized by common law until the case of b. Rex v Scofield in 1784. The essence of the crime of attempt in legal terms is that the defendant has failed to commit the actus reus (the Latin term for the "guilty act") of the full offense, but has the direct and specific intent to commit that full offense. The normal rule for establishing criminal liability is to prove an actus reus accompanied by a mens rea ("guilty mind") at the relevant time (see concurrence and strict liability offenses as the exception to the rule). The actus reus (guilty act) of attempted crime. Whether the actus reus of an attempt has occurred is a question of fact for the jury to decide after having heard the judge's instructions regarding the law. The common law precedent is used to distinguish between acts that were merely preparatory and those sufficiently proximate or connected to the crime. However, sometimes it is hard to draw the line between those acts which were merely preparatory, and those that went and executed a plan, will always go through a series of steps to arrive at the intended conclusion. Some aspects of the execution of the act will be too remote or removed from the full offense. Examples are watching the intended victim over a period of time to establish the routines and traveling to a store to buy necessary tools and equipment. But the closer to the reality of committing the offense the potential wrongdoer moves, the greater the social danger they become. This is a critical issue for the police who need to know when they can intervene to avert the threatened harm by arresting the person. This is a difficult policy area. On the one hand, the state wishes to be able to protect its citizens from harm. This requires an arrest at the earliest possible time. But, most states recognize a principle of individual liberty that only those people who actually choose to break the law should be arrested. Since the potential wrongdoer could change their mind at any point before the crime is committed, the state should wait until the last possible minute to ensure that the intention is going to be realized.