Law School

In common law jurisdictions, a misrepresentation is an untrue or misleading  statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The misled party may normally rescind the contract, and sometimes may be awarded damages as well (or instead of rescission). The law of misrepresentation is an amalgam of contract and tort; and its sources are common law, equity and statute. In England and Wales, the common law was amended by the Misrepresentation Act 1967. The general principle of misrepresentation has been adopted by the United States and other former British colonies, for example India. Representation and contract terms. A "representation" is a pre-contractual statement made during negotiations. If a representation has been incorporated into the contract as a term, then the normal remedies for breach of contract apply. Factors that determine whether or not a representation has become a term include: The relative expertise of the parties. The reliance that one party has shown on the statement. The reassurances given by the speaker. The customary norms of the trade in question. The representation forms the basis of a collateral contract. Otherwise, an action may lie in misrepresentation, and perhaps in the torts of negligence and deceit also. Although a suit for breach of contract is relatively straightforward, there are advantages in bringing a parallel suit in misrepresentation, because whereas repudiation is available only for breach of condition, rescission is prima facie available for all misreps, subject to the provisions of s.2 of the Misrepresentation Act 1967, and subject to the inherent limitations of an equitable remedy.

Replevin or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology. The word "replevin" is of Anglo-Norman origin and is the noun form of the verb "replevy". This comes from the Old French replevir, derived from plevir ("to pledge"), which is derived from the Latin replegiare ("to redeem a thing taken by another"). Nature. In The Law of Torts, John Fleming has written: From medieval times, there has also come down to us a summary process, known as replevin, by which a man out of whose possession goods have been taken may obtain their return until the right to the goods can be determined by a court of law. Replevin arose out of the need of a turbulent society to discourage resort to self-help and although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession. If the plaintiff wanted return of his chattel in specie, replevin was a more appropriate remedy than either trespass or trover in which only damages could be recovered. Restoration of the property is, of course, only provisional, pending determination of title. In common law, several types of action existed with respect to deprivation of possession (being subdivided into the wrongful taking of chattels and the unjust detention of them, even where the original taking was lawful):  In the case of wrongful taking: A writ of replevin was available only for an unlawful taking in the nature of a wrongful distress, where restitution could be made for the goods wrongfully taken (being in the nature of a redelivery of the pledge or the thing taken in distress) with damages for the loss sustained by such action. As distrained goods are in the custody of the law, any attempt to take them back by force without a writ of replevin could be contested by writ of rescous or de parco fracto, with a remedy in damages. A writ of trespass vi et armis was available in the taking of goods, with a remedy in damages. An action of trover and conversion was available for the non-forcible taking of goods, with a remedy in damages. ·         In the case of unjust detention: Replevin lay to recover goods still held after a tender of amends. Detinue lay to recover lent goods where the holder refused to return them to the owner. However, the defendant was allowed to exculpate himself by oath, so this action was displaced by that of trover and conversion. At common law, the ordinary action for the recovery of goods wrongfully taken was originally one of detinue, but no means of immediate recovery was possible until the action was tried. Replevin arose to deal with the matter of the illegal distress of goods for rent or damage feasant, in order to procure their restoration to the owner. Illegal distress has been held to occur where: 1. no relationship of landlord and tenant exists at all, 2. there is no demise at a fixed rent, 3. no rent is due, or nondue to the person who has distrained, 4. goods have been released before the distress, or tendered before the impounding, 5. the entry was illegal, or 6. things privileged from distress (for example, neither goods nor chattel) have been seized. Replevin will not lie where if any part of the rent claimed was due, but this defense is not effective where the only rent claimed by the landlord is not recoverable by distress. It has been held that replevin applies to any wrongful taking of goods and chattel.

Income taxes in the United States are imposed by the federal government, and most states. The income taxes are determined by applying a tax rate, which may increase as income increases, to taxable income, which is the total income less allowable deductions. Income is broadly defined. Individuals and corporations are directly taxable, and estates and trusts may be taxable on undistributed income. Partnerships are not taxed (with some exceptions in the case of Federal income taxation), but their partners are taxed on their shares of partnership income. Residents and citizens are taxed on worldwide income, while nonresidents are taxed only on income within the jurisdiction. Several types of credits reduce tax, and some types of credits may exceed tax before credits. An alternative tax applies at the federal and some state levels. In the United States, the term "payroll tax" usually refers to FICA taxes that are paid to fund Social Security and Medicare, while "income tax" refers to taxes that are paid into state and federal general funds. Most business expenses are deductible. Individuals may also deduct a personal allowance (exemption) and certain personal expenses, including home mortgage interest, state taxes, contributions to charity, and some other items. Some deductions are subject to limits. Capital gains are taxable, and capital losses reduce taxable income to the extent of gains (plus, in certain cases, $3,000 or $1,500 of ordinary income). Individuals currently pay a lower rate of tax on capital gains and certain corporate dividends. Taxpayers generally must self assess income tax by filing tax returns. Advance payments of tax are required in the form of withholding tax or estimated tax payments. Taxes are determined separately by each jurisdiction imposing tax. Due dates and other administrative procedures vary by jurisdiction. April 15 following the tax year is the last day for individuals to file tax returns for federal and many state and local returns. Tax as determined by the taxpayer may be adjusted by the taxing jurisdiction.

A treasure trove is an amount of money or coin, gold, silver, plate, or bullion found hidden underground or in places such as cellars or attics, where the treasure seems old enough for it to be presumed that the true owner is dead and the heirs undiscoverable. An archeological find of a treasure trove is known as a hoard. The legal definition of what constitutes a treasure trove and its treatment under law vary considerably from country to country, and from era to era. The term is also often used metaphorically. Collections of articles published as a book are often titled Treasure Trove, as in A Treasure Trove of Science. This was especially fashionable for titles of children's books in the early-and mid-20th century. The law of treasure trove in the United States varies from state to state, but certain general conclusions may be drawn. To be a treasure trove, an object must be of gold or silver. Paper money is also deemed to be a treasure trove since it previously represented gold or silver. On the same reasoning, it might be imagined that coins and tokens in metals other than gold or silver are also included, but this has yet to be clearly established. The object must have been concealed for long enough so it is unlikely that the true owner will reappear to claim it. The consensus appears to be that the object must be at least a few decades old. A majority of state courts, including those of Arkansas, Connecticut, Delaware, Georgia, Indiana, Iowa, Maine, Maryland, New York, Ohio, Oregon and Wisconsin, have ruled that the finder of the treasure trove is entitled to it. The theory is that the English monarch's claim to treasure trove was based on a statutory enactment which replaced the finder's original right. When this statute was not re-enacted in the United States after its independence, the right to treasure trove reverted to the finder. In Idaho and Tennessee courts have decided that the treasure trove belongs to the owner of the place where it was found, the rationale being to avoid rewarding trespassers. In one Pennsylvania case, a lower court ruled that the common law did not vest treasure trove in the finder but in the sovereign, and awarded a find of $92,800 cash to the state. However, this judgment was reversed by the Supreme Court of Pennsylvania on the basis that it had not yet been decided if the law of treasure trove was part of Pennsylvania law. The Supreme Court deliberately refrained from deciding the issue. Finds of money and lost property are dealt with by other states through legislation. These statutes usually require finders to report their finds to the police and transfer to their custody the objects. The police then advertise the finds to try to locate their true owner. If the objects remain unclaimed for a specified period of time, title in them vests in the finders. New Jersey vests buried or hidden property in the landowner, Indiana in the county, Vermont in the town, and Maine in the township and the finder equally. In Louisiana, French codes have been followed, so half of a found object goes to the finder and the other half to the landowner. The position in Puerto Rico, the laws of which are based on civil law, is similar. Finders who are trespassers generally lose all their rights to finds, unless the trespass is regarded as "technical or trivial".

A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added; other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon. Some common law countries and jurisdictions no longer classify crimes as felonies or misdemeanors and instead use other distinctions, such as by classifying serious crimes as indictable offenses and less serious crimes as summary offenses. In the United States, where the felony/misdemeanor distinction is still widely applied, the federal government defines a felony as a crime punishable by death or imprisonment in excess of one year. If punishable by exactly one year or less, it is classified as a misdemeanor. The classification is based upon a crime's potential sentence, so a crime remains classified as a felony even if a defendant convicted of a felony receives a sentence of one year or less. Individual states may classify crimes by other factors, such as seriousness or context. In some civil law jurisdictions, such as Italy and Spain, the term delict is used to describe serious offenses, a category similar to common law felony. In other nations, such as Germany, France, Belgium, and Switzerland, more serious offenses are described as crimes, while misdemeanors or delicts (or délits) are less serious. In still others (such as Brazil and Portugal), crimes and delicts are synonymous (more serious) and are opposed to contraventions (less serious). Overview. Classification by subject matter. Felonies may include but are not limited to the following: Murder. Aggravated assault or battery. Manslaughter (unintentional killing of another). Animal cruelty. Arson. High speed chase. Burglary. Robbery/Extortion. Tax evasion. Fraud. Cybercrime. Identity theft. The manufacture, sale, distribution, or possession with intent to distribute certain types or quantities of illegal drugs. In some jurisdictions, the possession of certain types of illegal drugs for personal use. Grand larceny or grand theft, for example, larceny or theft above a certain statutorily established value or quantity of goods. Vandalism on federal property. Impersonation of a law enforcement officer with intention of deception. Treason. Rape/sexual assault. Kidnapping. Obstruction of justice. Perjury. Copyright infringement. Child pornography. Forgery. Threatening an official (police officer, judge). Blackmail. Driving under the influence (certain DUI cases involving bodily injury and/or death. In some jurisdictions property damage over a certain amount elevates a DUI charge to a felony as well).

In contract law, a mistake is an erroneous belief, at contracting, that certain facts are true. It can be argued as a defense, and if raised successfully can lead to the agreement in question being found void ab initio or voidable, or alternatively an equitable remedy may be provided by the courts. Common law has identified three different types of mistake in contract: the 'unilateral mistake', the 'mutual mistake' and the 'common mistake'. The distinction between the 'common mistake' and the 'mutual mistake' is important. Another breakdown in contract law divides mistakes into four traditional categories: unilateral mistake, mutual mistake, mistranscription, and misunderstanding. The law of mistake in any given contract is governed by the law governing the contract. The law from country to country can differ significantly. For instance, contracts entered into under a relevant mistake have not been voidable in English law since Great Peace Shipping Ltd v Tsavliris (International) Ltd (2002). Examples. Mistake can be: Mistake of law, or, Mistake of fact Mistake of law: when a party enters into a contract, without the knowledge of the law in the country, the contract is affected by such mistakes, but it is not void. The reason here is that ignorance of law is not an excuse. However, if a party is induced to enter into a contract by the mistake of law then such a contract is not valid. Illustration: Harjoth and Danny make a contract grounded on the erroneous belief that a particular debt is barred by the Indian law of Limitation; the contract is not voidable. Mistake of fact: Where both the parties enter into an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is voidable. Explanation: An erroneous opinion as to the value of the thing which forms the subject matter of the agreement is not to be deemed a mistake as to a matter of fact. Illustration: Lady found a stone and sold it as a topaz for $1 ($25 today). It was a raw uncut diamond worth $700 (today $17,000). The contract is not voidable. There was no mistake because neither party knew what the stone was. Anti-illustration: A sells a cow to B for $80 because it is infertile. The cow is actually pregnant and worth $1000. The contract is void.

In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant. Detinue allows for a remedy of damages for the value of the chattel, but unlike most other interference torts, detinue also allows for the recovery of the specific chattel being withheld. History. Historically, detinue came in two forms: "detinue sur bailment" and "detinue sur trover". In detinue sur bailment, the defendant is in a bailment relationship with the claimant and either refuses to return the chattel or else has negligently or intentionally lost or destroyed it. The onus is on the bailee to prove that the loss of the chattel was not his or her fault. In detinue sur trover, the defendant can be any individual in possession of the chattel who refuses to return it to the claimant. A defendant could be a finder or a thief or any innocent third party, and the claimant need only have a better right to possession. Early writs and forms of action were exceptionally narrow in scope. This is reflective of the basic conservatism of the common law courts in the middle and late medieval period. This was in contrast with the courts of equity which were creative in producing novel writs for many new fact situations. Compensation in those days was usually not in money, which was rare, but in land, livestock, or furnishings, as these were the typical measures of wealth. What the plaintiff wanted back was the land, cattle or even coins lent. Maitland suggests that in the earliest time the writ of debt seems almost to have been designed to recover identical coins. The early writ of detinue was specifically designed for recovery of a chattel wrongfully detained, but not an action to recover loss due to a chattel being harmed while the defendant had it. Two facts marked the early common law actions. They were defective because of the wide field which was excluded. They were also defective because the plaintiff might well think himself entitled to a remedy, but by reason of the procedure found that he went away empty. The defendant to a writ of debt or detinue might bring others with him who would swear that his denial of the claim was true. This was technically called his "wage of law" or "wager of law". It was enough to dispose of the plaintiff's claim. A common way to escape all writs, even the writ of right, as well as debt and detinue was to claim sickness. If the jury found him in bed with his boots off, the custom was to delay the writ for a year and a day.

The U.S. generation-skipping transfer tax (the "GST tax") imposes a tax on both outright gifts and transfers in trust to or for the benefit of unrelated persons who are more than 37.5 years younger than the donor or to related persons more than one generation younger than the donor, such as grandchildren. These people are known as "skip persons." In most cases where a trust is involved, the GST tax will be imposed only if the transfer avoids incurring a gift or estate tax at each generation level. Assume, for example, a donor transfers property in a trust for the donor's child and grandchildren and that during the child's lifetime, the trustee may distribute income among the child and grandchildren in accordance with their needs. Assume further that the trust instrument provides that the remaining principal of the trust will be distributed outright to the grandchildren following the child's death. If the trust property is not subject to estate tax at the child's death (by reason of a general power of appointment), a GST tax will be imposed when the child dies. This is called a "taxable termination." In that case, the trustee is responsible for filing a GST tax return and paying the tax. On the other hand, a "taxable distribution" occurs if the trustee distributes income or principal to a grandchild before the trust terminates.  In that case, the beneficiary is responsible for paying the tax. These taxable events are sometimes overlooked by people who may be unaware of the existence of the tax or its application to their situation. The first version of the tax (1976). The first version of the generation-skipping transfer tax was introduced in 1976. That version attempted to impose a generation-skipping tax exactly equal to the estate or gift tax that was avoided. In the above example, the Executor of the child's Will would have had to determine the estate tax, if any, the child's estate owed without regard to the existence of the trust. Then the Trustee of trust would have to use the child's Federal Estate Tax Return as the basis for recomputing the child's estate tax liability as if the trust property had been part of the child's estate.

Lost, mislaid, and abandoned property are categories of the common law of property which deals with personal property or chattel which has left the possession of its rightful owner without having directly entered the possession of another person. Property can be considered lost, mislaid or abandoned depending on the circumstances under which it is found by the next party who obtains its possession. There is an old saying that possession is nine-tenths of the law, perhaps dating back centuries. This means that in most cases, the possessor of a piece of property is its rightful owner without evidence to the contrary. More colloquially, this may be called finders, keepers. The contradiction to this principle is theft by finding, which may occur if conversion occurs after finding someone else's property. The rights of a finder of such property are determined in part by the status in which it is found. Because these classifications have developed under the common law of England, they turn on nuanced distinctions. The general rule attaching to the three types of property may be summarized as: A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property. This rule varies by jurisdiction. Lost property. Property is generally deemed to have been lost if it is found in a place where the true owner likely did not intend to set it down, and where it is not likely to be found by the true owner. At common law, the finder of a lost item could claim the right to possess the item against any person except the true owner or any previous possessors. The underlying policy goals to these distinctions are to (hopefully) see that the property is returned to its true original owner, or "title owner." Most jurisdictions have now enacted statutes requiring that the finder of lost property turn it in to the proper authorities; if the true owner does not arrive to claim the property within a certain period of time (this is defined by the Torts Act 1977 as 3 months from the date of finding), the property is returned to the finder as his own, or is disposed of. In Britain, many public businesses have a dedicated Lost Property Office (LPO), which in the United States would be called a lost and found, where lost property can be reported and reclaimed free of charge. Many exceptions may be applied at common law to the rule that the first finder of lost property has a superior claim of right over any other person except the previous owner. For example, a trespasser's claim to lost property which he finds while trespassing is generally inferior to the claim of the respective landowner. As a corollary to this exception, a landowner has superior claim over a find made within the non-public areas of his property, so if a customer finds lost property in the public area of a store, the customer has superior claim to the lost property over that of the store-owner, but if the customer finds the lost property in the non-public area of that store, such as an area marked "Employees Only," the store-owner will have superior claim, as the customer was trespassing when he found it.

Under criminal law, a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories or conspirators. The legal principle of vicarious liability applies to hold one person liable for the actions of another when engaged in some form of joint or collective activity. History. Before the emergence of states which could bear the high costs of maintaining national policing and impartial court systems, local communities operated self-help systems to keep the peace and to enforce contracts. Until the thirteenth century, one of the institutions that emerged was an involuntary collective responsibility for the actions committed by one of the groups. This was formalized into the community responsibility system (CRS) which was enforced by a fear of loss of community reputation and of retaliation by the injured community if the appropriate compensation was not paid. In some countries where the political system supported it, collective responsibility was gradually phased out in favor of individual responsibility. In Germany and Italy, collective systems were in operation as late as the sixteenth century. While communities were relatively small and homogeneous, CRS could work well, but as populations increased and merchants began to trade across ever wider territories, the system failed to match the emerging societies' needs for more personal accountability and responsibility. In England, Henry the 1st allowed London to opt out of the CRS and to appoint a sheriff and justices in 1133, and between 1225 and 1232, Henry the 3rd assured the merchants of Ypres that none of them "will be detained in England nor will they be partitions for another's debts". Nevertheless, the idea of imposing liability on another despite a lack of culpability never really disappeared and courts have developed the principle that an employer can incur liability for the acts and omissions of an employee if committed by the employee in the course of employment and if the employer has the right to control the way in which the employee carries out his or her duties (respondeat superior). The imposition of vicarious liability in these circumstances has been justified on the following grounds: Exercise of control: If penalties are serious enough, it is assumed that rational employers will take steps to ensure that employees avoid injuring third parties. On the other hand, rational employers may choose to rely on independent contractors for risky operations and processes. Risk spreading: Many consider it socially preferable to impose the cost of an action on a person connected to it, even if a degree removed, rather than on the person who suffered injury or loss. This principle is also sometimes known as the "deep pocket" justification. Internalizing the social costs of activities: The employer usually (though not always) passes on the cost of compensating injury or loss to the customers and clients. As a result, the private cost of the product or service will better reflect its social cost. These justifications may work against one another. For example, insurance will increase the ability to do risk spreading, but will reduce incentives for the exercise of control.