Law School

 In contract law, an integration clause, merger clause, (sometimes, particularly in the United Kingdom, referred to as an entire agreement clause)  is a clause in a written contract which declares that contract to be the complete and final agreement between the parties. It is often placed at or towards the end of the contract. Any pre-contractual material which the parties wish to be incorporated into the contract need to be assembled with it or explicitly referred to in the contractual documentation. Effect. A contract that has such a clause may be deemed an integrated contract, and any previous negotiations in which the parties to the contract had considered different terms will be deemed superseded by the final writing. However, many modern cases have found merger clauses to be only a rebuttable presumption. In the United States, the existence of such a term is normally not conclusive proof that no varied or additional conditions exist with respect to the performance of the contract beyond those that are in the writing but instead is simply evidence of that fact. In Personnel Hygiene Services Ltd v Mitchell, an England and Wales Court of Appeal case where there were two distinct contractual relationships between the parties, a service agreement superseded by a compromise agreement, and a separate share purchase agreement, it was held that the entire agreement provisions in the compromise agreement annulled the service agreement but the share purchase agreement remained intact. Contra proferentem (Latin: "against  offeror"), also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. Overview. The doctrine is often applied to situations involving standardized contracts or where the parties are of unequal bargaining power, but is applicable to other cases. The doctrine is not, however, directly applicable to situations where the language at issue is mandated by law, as is often the case with insurance contracts and bills of lading. The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as it can. Eric Posner claimed: "The contra proferentem rule, for example, might encourage the drafter to be more explicit and to provide more details about obligations. This may reduce the chance that the other party will misunderstand the contract; it also may facilitate judicial interpretation of the contract.” Uri Weiss claimed: "The Contra Proferentem rule motivates the less risk-averse drafter to refrain from manipulating the other side by making the contract unclear. Thus, the two parties can agree that the less risk-averse side will formulate the contract, thus reducing the cost of the transaction. Without this rule, there might be a moral hazard problem".

Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement. Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, is sometimes prosecuted via the criminal justice system. Shifting public expectations, advances in digital technology and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize, as indirect infringers, the service providers and software distributors who are said to facilitate and encourage individual acts of infringement by others. Estimates of the actual economic impact of copyright infringement vary widely and depend on other factors. Nevertheless, copyright holders, industry representatives, and legislators have long characterized copyright infringement as piracy or theft – language which some U.S. courts now regard as pejorative or otherwise contentious. Terminology. The terms piracy and theft are often associated with copyright infringement. The original meaning of piracy is "robbery or illegal violence at sea", but the term has been in use for centuries as a synonym for acts of copyright infringement. Theft, meanwhile, emphasizes the potential commercial harm of infringement to copyright holders. However, copyright is a type of intellectual property, an area of law distinct from that which covers robbery or theft, offenses related only to tangible property. Not all copyright infringement results in commercial loss, and the U.S. Supreme Court ruled in 1985 that infringement does not easily equate with theft. This was taken further in the case MPAA v Hotfile, where Judge Kathleen M Williams granted a motion to deny the MPAA the usage of words whose appearance was primarily "pejorative". This list included the word "piracy", the use of which, the motion by the defense stated, serves no court purpose but to misguide and inflame the jury.

A gift tax is a tax imposed on the transfer of ownership of property during the giver's life. The United States Internal Revenue Service says that a gift is "Any transfer to an individual, either directly or indirectly, where full compensation (measured in money or money's worth) is not received in return." When a taxable gift in the form of cash, stocks, real estate, or other tangible or intangible property is made, the tax is usually imposed on the donor (the giver) unless there is a retention of an interest which delays completion of the gift. A transfer is "completely gratuitous" when the donor receives nothing of value in exchange for the given property. A transfer is "gratuitous in part" when the donor receives some value but the value of the property received by the donor is substantially less than the value of the property given by the donor. In this case, the amount of the gift is the difference. In the United States, the gift tax is governed by Chapter 12, Subtitle B of the Internal Revenue Code. The tax is imposed by section 2501 of the Code. For the purposes of taxable income, courts have defined a "gift" as the proceeds from a "detached and disinterested generosity." Gifts are often given out of "affection, respect, admiration, charity or like impulses." Generally, if an interest in property is transferred during the giver's lifetime (often called an inter vivos gift), then the gift or transfer would not be subject to the estate tax. In 1976, Congress unified the gift and estate tax regimes, thereby limiting the giver's ability to circumvent the estate tax by giving during his or her lifetime. Some differences between estate and gift taxes remain, such as the effective tax rate, the amount of the credit available against tax, and the basis of the received property. There are also types of gifts which will be included in a person's estate, such as certain gifts made within the three-year window before death and gifts in which the donor retains an interest such as gifts of remainder interests that are not either qualified remainder trusts or charitable remainder trusts. The remainder interest gift tax rules impose the tax on the transfer of the entire value of the trust by assigning a zero value to the interest retained by the donor.

Accession has different definitions depending upon its application. In property law, it is a mode of acquiring property that involves the addition of value to property through labor or the addition of new materials. For example, a person who owns a property on a river delta also takes ownership of any additional land that builds up along the riverbank due to natural deposits or manmade deposits. In commercial law, accession includes goods that are physically united with other goods in such a manner that the identity of the original goods is not lost. In English common law, the added value belongs to the original property's owner. For example, if the buyer of a car has parts added or replaced and the buyer then fails to make scheduled payments and the car is repossessed, the buyer has no right to the new parts because they have become a part of the whole car. In modern common law, if the property owner allows the accession through bad faith, the adder of value is entitled to damages or title to the property. If the individual who adds value to the owner's chattel (personal property) is a trespasser or does so in bad faith, the owner retains title and the trespasser cannot recover labor or materials. The owner of the chattel may seek conversion damages for the value of the original materials plus any consequential damages. Alternatively, the owner may seek replevin (return of the chattel). However, the owner may be limited to damages if the property has changed its nature by accession. For example, if a finder discovers a gemstone and in good faith believes it to be abandoned and then cuts it and integrates it into a work of art, the true owner may be limited to recovery of damages for the value of the gemstone but not of the final art piece by way of replevin. The remedies and application of the law vary by legal jurisdiction. Roman accession. Accession might also be (from Latin accedere, to go to, approach), in law, a method of acquiring property adopted from Roman law, by which, in things that have a close connection with or dependence on one another, the property of the principal draws after it the property of the accessory, according to the principle, accessio cedet principali. Accession may take place either in a natural way, such as the growth of fruit or the pregnancy of animals, or in an artificial way. The various methods may be classified as:  Land to land by accretion or alluvion. Moveables to land or fixtures. Moveables to moveables. Moveables added to by the art or industry of man.

Corporate liability, also referred to as liability of legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons it employs and, in some legal systems, for those of other associates and business partners. Since corporations and other business entities are a major part of the economic landscape, corporate liability is a key element in effective law enforcement for economic crimes. A 2016 mapping of 41 countries’ corporate liability systems shows wide variations in approaches to liability and that corporate liability is a dynamic area of legal innovation and evolution. The term legal person refers to a business entity (often a corporation, but possibly other legal entities, as specified by law) that has both legal rights (for instance, the right to sue) as well as legal obligations. Because, at a public policy level, the growth and prosperity of society depends on the business community, governments must carefully tailor the extent and ways that each permitted form of business entity can be held liable. Important design elements of corporate liability systems include jurisdiction, successor liability, related and unrelated entities as a source of liability, sanctions and mitigating factors. Poorly designed or non-existent corporate liability systems can make it impossible to enforce laws effectively and can lead to profound injustices for individuals or entities seeking accountability and redress for wrongdoing. Nature of corporate liability. Countries can base their corporate liability systems in criminal or non-criminal law (that is, administrative or civil law) or in both. They can also enact legislation that creates liability for legal persons in specific areas of law (for example, covering health and safety, and product safety issues). Under this approach, the wording of a statutory offense specifically attaches liability to the corporation as the principal or joint principal with a human agent. Generally, countries’ approaches to this issue reflect long-standing and diverse legal traditions. For example, Australia and Canada anchor their corporate liability systems in criminal law, while the German and Italian systems are based in administrative law. Some jurisdictions use criminal and civil systems in parallel, thereby expanding options for pursuing legal accountability for legal persons and for making political judgments on when to use the criminal law in order to maximize the impact of those cases that are prosecuted. The United States’ system of corporate liability is an example of one that incorporates both criminal and civil law elements.

A standard form contract (sometimes referred to as a contract of adhesion, a leonine contract, a take-it-or-leave-it contract, or a boilerplate contract) is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position. While these types of contracts are not illegal per se, there exists a potential for unconscionability. In addition, in the event of an ambiguity, such ambiguity will be resolved contra proferentem, for example, against the party drafting the contract language. Theoretical issues. There is much debate on a theoretical level whether, and to what extent, courts should enforce standard form contracts. On one hand, they undeniably fulfill an important role of promoting economic efficiency. Standard form contracting reduces transaction costs substantially by avoiding the need for buyers and sellers of goods and services to negotiate the details of a sale contract each time the product is sold. On the other hand, there is the potential for inefficient, and even unjust, terms to be accepted by signatories to these contracts. Such terms might be seen as unjust if they allow the seller to avoid all liability or unilaterally modify terms or terminate the contract. These terms often come in the form of, but are not limited to, forum selection clauses and mandatory arbitration clauses, which can limit or foreclose a party's access to the courts; and also liquidated damages clauses, which set a limit to the amount that can be recovered or require a party to pay a specific amount. They might be inefficient if they place the risk of a negative outcome, such as defective manufacturing, on the buyer who is not in the best position to take precautions.

Defenses. In a conversion suit, it is no defense to claim that the defendant was not negligent or that the defendant acquired the plaintiff's property through the plaintiff's unilateral mistake, or that the defendant acted in complete innocence and perfect good faith. The following are traditional defenses to an action in conversion: Abandonment. Abandonment of the property before it was taken by the defendant is a complete defense. Authority of law. A conversion cannot occur if it is done by authority of law, a court order or valid process. Consent or approbation. Consent by the plaintiff can be either express or implied. Delay in bringing action. Statutes of limitations are defined by legislative jurisdiction. Some cases are based on "reasonable knowledge". Paintings purchased from a third person became the subject of an action in conversion, even though the incident had occurred 30 years prior. The action accrued based on when the plaintiff reasonably knew or should have known the identity of the possessor of the converted paintings. See also the doctrine of laches. Fraud of the plaintiff. Conveying property to a third person for purposes of evading creditors is a complete defense to a subsequent action in conversion. interest of defendant. If the defendant has ownership or partial ownership to the property, it cannot be converted. Cases revolve around the specific facts concerning ownership. Value of property. A provisional defense can be made if the property converted has no value. Nevertheless, it is well established that it is not necessary for property to have a commercial value in order to maintain an action in conversion. This argument can be used to mitigate damages. Writings. A bill or debt obligation can be converted. However, if it has been paid or otherwise satisfied, then it has neither value nor existence in the eyes of the court. Nonexistence or lack of identity of property. Something that was not in existence at the time of the alleged conversion cannot be converted. Privilege. Finders of lost property may be entitled to use or ownership if the real owner cannot be identified. This is an overlap into the rules of trover. Unlawful and illegal acts. Unlawful contracts, illegal ownership and illegal activities on the part of the plaintiff can be a defense to an action in conversion. A counterfeit coin cannot be converted, nor can a note issued in an illegal manner. Waiver, ratification and estoppel. An action in conversion can be dismissed if the right to treat the action has been waived by the plaintiff. By receipt of proceeds of a sale. Accepting the proceeds of a sale of the converted property is a defense against further action. By accepting return of goods. Once the owner accepts the converted property back, he or she is generally precluded from any further action.

Felony - A crime carrying a penalty of more than a year in prison.  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. 

Excise tax types. The effective federal excise tax rate for different household income groups (2007). The effective tax rate equals total federal excise taxes paid during the year divided by total comprehensive income, including estimated values of Medicare and health benefits, food stamps, employment taxes on employers, imputed corporate income tax, and other non-taxable items. Excise taxes are 0.7% of all federal taxes collected. For purposes of the U.S. Constitution, an excise tax can be broadly defined as any indirect tax (usually, a tax on an event). In this sense, an excise means any tax other than: (1) a property tax or ad valorem tax by reason of its ownership; (2) a tax per head tax or capitation tax by being present (very rare in the United States). In this broad sense, income taxes, value added taxes (VATs), sales taxes, and transfer taxes are examples of other excise taxes, but are typically not called excise taxes (in the United States) because of the different ways they are imposed. In the United States, essentially the only taxes called excise taxes are the taxes on quantities of enumerated items (whiskey, wine, tobacco, gasoline, tires, etc.). Other taxes on certain events may technically be considered excise taxes in the broad sense, but may or may not be collected under the name "excise tax" where the term is used in a different, more narrow sense. In the more narrow sense, taxes denominated as "excise" taxes are usually taxes on events, such as the purchase of a quantity of a particular item like gasoline, diesel fuel, beer, liquor, wine, cigarettes, airline tickets, tires, trucks, etc. These taxes are usually included in the price of the item, not listed separately like sales taxes usually are. To minimize tax accounting complications, the excise tax is usually imposed on quantities like gallons of fuel, gallons of wine or drinking alcohol, packets of cigarettes, etc. and are usually paid initially by the manufacturer or retailer. The burdens of excise taxes are often passed on to the consumer who eventually consumes the product. The price for which the item is eventually sold is not generally considered in calculating the amount of the excise tax. An example of a state of being tax is an ad valorem property tax—which is not an excise. Customs or tariffs are based on the property (usually imported goods) as a state of being or ad valorem taxes and are also typically not called excise taxes. Excise taxes are collected by producers and retailers and paid to the Internal Revenue Service (IRS) or other state and/or local government tax collection agency. Historical federal excise tax collections to 1945 are listed in the Historical Statistics of the United States and more recent federal excise tax data is listed in the White House historical tables. An excise is imposed on listed specific taxable events or products and is usually not collected or paid directly by the consumer. Excise taxes are collected by the producer or retailer and paid to the IRS, state or local tax agency. The producer can usually pass at least some of the burden of the excise tax to the consumer, the amount of which is added to the price of the product when it is sold. The degree to which consumers and producers will share the burden, called tax incidence, depends upon the price elasticities of supply and demand. Often sales taxes are collected as a percentage of the cost of the product including its excise tax—a tax on a tax.

The right of conquest is a right of ownership to land after immediate possession via force of arms. It was recognized as a principle of international law that gradually deteriorated in significance until its proscription in the aftermath of World War II following the concept of crimes against peace introduced in the Nuremberg Principles. The interdiction of territorial conquests was confirmed and broadened by the UN Charter, which provides in article 2, paragraph 4, that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." Although civil wars continued, wars between established states have been rare since 1945. Nations that have resorted to the use of force since the Charter came into effect have typically invoked self-defense or the right of collective defense. The discovery doctrine, also called doctrine of discovery, is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v M'Intosh in 1823. Chief Justice John Marshall explained and applied the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, European Christian governments could lay title to non-European Christian territory on the basis that the colonizers traveled and "discovered" said territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of modern governments, such as in the 2005 case of Sherrill v Oneida Nation. The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. John Marshall explained the Court's reasoning. The decision has been the subject of a number of law review articles and has come under increased scrutiny by modern legal theorists.