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Deed

Deed

A deed is a legal instrument used to grant a right. The deed is best known as the method of transferring title to real estate from one person to another. However, by the general definition, powers of attorney, commissions, patents, and even diplomas conferring academic degrees are also deeds. Historically under common law, for an instrument to be a valid deed it needed five things:
- It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the sentence indicating the gift.
- The person receiving the privilege or thing must have the legal capacity to receive it.
- The grantor must have the legal ability to grant the thing or privilege.
- A seal must be affixed to it. Most jurisdictions have eliminated this requirement and replaced it with the signature of the grantor. However, for conveyances of real estate, most jurisdictions require that the deed be acknowleged before a notary public or a civil law notary and some may require a witness or witnesses in addition.
- It must be delivered to and accepted by the recipient. Conditions attached to the acceptance of a deed are known as covenants. In the United States of America, a pardon of the President was at one time considered to be a deed and thus needed to be accepted by the recipient. This made it impossible to grant a pardon posthumously. However, in the case of Henry Ossian Flipper, this view was altered when President Bill Clinton pardoned him in 1999. In some jurisdictions, a deed of trust is used as an equivalent to a mortgage. In some jurisdictions (especially New Zealand) a deed of endowment is used as an equivalent to a Royal Charter, often used to establish educational or medical institutions. One such example is when the Governor of New Zealand, Sir George Grey, established the Auckland and Wellington Grammar schools in 1850. In the transfer of real estate, a deed conveys ownership from the old owner (the grantor) to the new owner (the grantee), and can include various warranties. The precise name of these warranties differ by jurisdiction. However the basic difference between them is the degree to which the grantor warrants the title. The grantor may give a general warranty of title against any claims, or the warranty may be limited only to claims which occurred after the grantor obtained the real estate. The latter type of deed is usually known as a special warranty deed. While a general warranty deed is normally used for residenial real estate sales and transfers, special warranty deeds more commonly used in commercial transactions. A third type of deed, known as a bargain and sale deed, implies that the grantor has the right to convey title but makes no warranties against encumbrances. This type of deed is most commonly used by court officials or fiduciaries that hold the property by force of law rather than title, such as properties seized for unpaid taxes and sold at sheriff's sale. A so-called quitclaim deed is (in most states) actually not a deed at all--it is actually an estoppel disclaiming rights of the person signing it to property. Usually the transfer of ownership of real estate is registered at a cadastre in the United Kingdom. In most parts of the United States, deeds must be submitted to the Recorder of deeds, who acts as a Cadastre, to be registered. Category: Legal documents Category: Real property law

Legal instrument

Legal instrument is a legal term of art that is used for any written legal document such as a certificate, a deed, a will, an Act of Parliament or a law passed by a competent legislative body in municipal (domestic) or international law. Many legal instruments were written under seal by affixing a wax or paper seal to the document in evidence of its legal execution and authenticity (this could often remove the need for consideration in contract law); however, today most jurisdictions have done away with the requirement of documents being under seal in order to give them legal effect.

Electronic legal documents

Legal instruments have undergone a progressive process of dematerialisation as it is now possible to sign digital documents, have them date and time stamped, or otherwise verified through various schemes of encryption and document authentication without benefit of actual parchment, seal, stamp, paper, or even ink. These changes have occurred in various ways in various jurisdictions and are hardly uniform. As they are recent, there is also confusion and misunderstanding at many levels, including statute, regulation, and courts. In particular, the United States Congress enacted a statute in mid 2000 specifying that no court could thereafter fail to recognize a contract simply because it was digitally signed. The law is very permissive, making essentially any electronic character in a contract sufficient. It is also quite restrictive in that some document types may not be in electronic form, no matter what the electronic character might be. No restriction is made to signatures which are adequately cryptographically tied to both the document text (see message digest) and to a particular key whose use should be restricted to certain persons (eg, the alleged sender). There is thus a gap between what the cryptographic engineering can provide and what the law assumes is both possible and meaningful. Several states had already enacted laws on the subject of electronic legal documents and signatures before the U.S. Congress had acted, including Utah, Washington, and California to name only a few of the earliest. They vary considerably in intent, coverage, cryptographic understanding, and effect. Several other nations and international bodies have also enacted statutes and regulations regarding the validity and binding nature of digital signatures. To date, the variety (and inadequacy) of the definitions used for digital signatures (or electronic signatures) have produced a legal and contractual minefield for those who may be considering relying on the legality and enforceability of digitally signed contracts in any of many jurisdictions. Adequate legislation adequately informed by cryptographic engineering technology remains an elusive goal. That it has been fully, or adequately, achieved (in any jurisdiction) is a claim which must be taken with considerable caution.

External link


- [http://www.fda.gov/cder/guidance/5505dft.pdf FDA Draft Guidelines on Part 11 21 CFR: Electronic records; electronic signatures (pdf file)] Category:Legal documents

Grant

Grant may refer to...
- Monetary aid, see Grant (money).
  - Federal grant for U.S. government grants.
- W. T. Grant variety store, a five and dime chain.

People

Grant is also a family name (and a first name):
- Clan Grant — a Scottish clan.
- Ulysses S. Grant, General-in-chief of the Union Army during the American Civil War and 18th president of the United States of America.
- Amy Grant an American singer-songwriter.
- Bud Grant an American football coach.
- Cuthbert Grant a Canadian leader in the early 19th century.
- Cary Grant a film actor.
- Donald Grant, IWW member, Australian Labor Party politician
- Duncan Grant a Scottish painter.
- Eddy Grant a British black reggae musician.
- George Grant a Canadian Philospher.
- Heber J. Grant, president of The Church of Jesus Christ of Latter-day Saints.
- Hugh Grant an English film actor.
- James Augustus Grant a Scottish explorer of Africa in the 19th century.
- Jedediah M. Grant, leader in The Church of Jesus Christ of Latter-day Saints.
- Lemuel P. Grant, Atlanta railroad pioneer
- Peter Grant a rock and roll manager.
- Peter and Rosemary Grant, biologists.
- William Grant the founder of William Grant & Sons Scotch Whisky company.

Places


- Grant, South Australia, Australia
- Grant, Alabama, United States
- Grant, Colorado, United States
- Grant, Florida, United States
- Grant, Iowa, United States
- Grant, Michigan, United States
- Grant, Minnesota, United States
- Grant, Nebraska, United States
- Grant, Wisconsin, United States (six towns)
- Grant City, Missouri, United States
- Grant Park, Illinois, United States
- Grant Town, West Virginia, United States
- Grant Township, Michigan, United States (eleven townships)
- Grant Township, Pennsylvania, United States
- Grantown or Grantown-on-Spey, Strathspey, Scotland
- Castle Grant, 1.5 miles North of Grantown-on-Spey, Scotland
- Grants, New Mexico, United States
- There are also fifteen Grant Counties in the US. Category:Surnames Category:Given names ja:グラント ko:그랜트

Right

:The following article discusses the notion of rights in matters of philosophy and Law. For the direction right, see left and right or starboard. For a discussion of "right" in the sense of right-wing politics or ideology, see Right-wing politics. "Claim" redirects here. For other uses, see Claim (disambiguation). A right is the power or privilege to which one is justly entitled or a thing to which one has a just claim. Rights serve as rules of interaction between people, and, as such, they place constraints upon the actions of individuals or groups (for example, if one is granted a right to life, this means that others do not have the liberty to murder him). Most modern conceptions of rights are universalist and egalitarian; in other words, equal rights are granted to all people. Such rights may be defined in terms of the Golden Rule ("do unto others as you would have them do unto you"). An individual agrees to respect the rights of others in exchange for the assurance that the others will respect the same rights for him in turn. By contrast, most pre-modern conceptions of rights were hierarchical, with different people being granted different rights, and some having more rights than others. For instance, the rights of a father to be respected by his son did not indicate a duty upon the father to return that respect, and the divine right of kings to hold absolute power over their subjects did not leave room for many rights to be granted to the subjects themselves. It is not generally considered necessary that a right should be understood by the holder of that right, thus rights may be agreed on behalf of another, such as children's rights or the rights of people declared mentally incompetant to understand their rights. However, rights must be understood by someone in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights. Therefore, educational opportunities within society have a close bearing upon the people's ability to erect adequate rights structures. There are two fundamental controversies surrounding the notion of rights: First, there is the question of the basis for rights (on what basis can rights be said to exist). Second, there is the question of the content of rights (what the rights of a person actually are).

Legal rights

In modern English and European systems of jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. Compare with duty, referring to behaviour that is expected or required of the citizen, and with privilege, referring to something that can be conferred and revoked. The specific enumeration of rights accorded to citizens has historically differed greatly from one century to the next, and from one regime to the next, but nowadays is normally addressed by the constitutions of the respective nations. Generally speaking (within the English and European systems) a right corresponds with a complementary obligation that others have on the same object or realm; for instance if someone has a right on a thing, simultaneously another party or parties have an obligation to do something (or to abstain from doing something) in order to respect that right or to give concrete execution to that right. Property rights provide a good example: society recognizes that individuals have title to particular property as defined by the transaction by which they acquired the property granting the individual free use and possession of the property. In many cases, especially regarding ideological and similar rights, the obligation depends on the legal system in its entirety, or on the state, or on the generical universality of other subjects submitted to the law. The right can therefore be a faculty of doing something, of omitting or refusing to do something or of claiming something. Some interpretations express a typical form of right in the faculty of using something, and this is more often related to the right of property. The faculty (in all the above mentioned senses) can be originated by a (generical or specific) law, or by a private contract (which is sometimes exactly defined as a specific law between or among volunteer parties). Other interpretations consider the right as a sort of freedom of something or as the object of justice. One of the definitions of justice is in fact the obligation that the legal system has toward the individual or toward the collectivity to grant respect or execution to his/her/its right, ordinarily with no need of explicit claim. Aristotle, in the Nicomachean Ethics (book five), claims that there is a large difference between written (generalized) justice and what is actually right for the (specific) individual. :(10-3) "But what obscures the matter is that though what is equitable is just, it is not identical with, but a correction of, that which is just according to law." :(10-4) "The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms. Where, then, it is necessary to speak in general terms, but impossible to do so correctly, the legislator lays down that which holds good for the majority of cases, being quite aware that it does not hold good for all." :"The law, indeed, is none the less correctly laid down because of this defect; for the defect lies not in the law, nor in the lawgiver, but in the nature of the subject-matter, being necessarily involved in the very conditions of human action." Rights can be divided into individual rights, that are held by citizens as individuals (or corporations) recognised by the legal system, and collective rights, held by an ensemble of citizens or a subgroup of citizens who have a certain characteristic in common. In some cases there can be an amount of tension between individual and collective rights. In other cases, the view of collective and individual rights held by one group can come into sharp and bitter conflict with the view of rights held by another group. For instance compare Manifest destiny with Trail of Tears. With reference to the object of the right, a common general distinction is among:
- intellectual rights, which include:
  - civil rights
  - religious rights
  - rights of opinion
- real rights (from the Latin word "res", thing), which include:
  - property rights
  - rights of use
  - liberties See also: human rights, positive rights, negative rights, exclusive rights. Particular systems can (or could in the past) include special rights like:
- fief rights, which included:
  - economical rights (like the right to collect taxes)
  - performance rights (like the jus primae noctis or corvee)

Important documents


- Magna Carta (1215; England)
  - Required the king to renounce certain rights and respect certain legal procedures, and to accept that the will of the king could be bound by law.
- Bill of Rights 1689 (England)
  - Declared that Englishmen, as embodied by Parliament, possess certain civil and political rights that can not be taken away.
- Declaration of the Rights of Man and of the Citizen (1789; France)
  - One of the fundamental documents of the French Revolution, defining a set of individual rights and collective rights of the people.
- United States Bill of Rights (1789/1791)
  - The first ten amendments of the United States Constitution.
- Universal Declaration of Human Rights (1948)
  - An over-arching set of standards by which Governments, organisations and individuals would measure their behaviour towards each other. The preamble declares that the
- :"...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
  - Other general Declarations from the UN have followed, notably the UN Convention on the Rights of the Child, 1989 [http://www.unicef.org/crc/crc.htm].
- European Convention on Human Rights (1950)
  - Adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms.
- Canadian Charter of Rights and Freedoms (1982)
  - Its purpose is to protect rights of Canadian citizens from actions and policies of all levels of government.
- Charter of Fundamental Rights of the European Union (2000)

See also


- Jurisprudence
- Law
- Animal rights
- Bill of rights
- Freedom
- Freedom of religion
- Freedom of speech
- Freedom of the press
- Social contract
- Claim (patent)

External links


- [http://en.wiktionary.org/wiki/Right "Right" in Wiktionary]
- [http://www.hrw.org/ Human Rights Watch]
- [http://www.amnesty.org/ Amnesty International]
- [http://moodle.ed.uiuc.edu/wiked/index.php/Teacher%E2%80%99s_rights Teacher's Rights]
- [http://www.ifex.org/ International Freedom of Expression Exchange] Category:Law Category:Rights ja:権利 simple:Rights

Title (property)

Title is a legal term for an owner's interest in a piece of property. It may also refer to a formal document that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, both possession and title may be transferred independently of each other.

Elements

The three elements of title are possession, the right of possession, and the right of property. Possession is the actual holding of a thing, with or without any right thereto. The right of possession is the right to legitimacy of possession (with or without actual possession), the evidence for which is such that the law will uphold it unless a better claim is proven. The right of property is that right which, if all relevant facts were known (and allowed), would defeat all other claims. Each of these may be in a different person. For example, suppose A steals from B, what B had previously bought in good faith from C, which C had earlier stolen from D, which had been a heirloom of D's family for generations, but had originally been stolen centuries earlier (though this fact is now forgotten by all) from E. Here A has the possession, B has an apparent right of possession (as evidenced by the purchase), D has the absolute right of possession (being the best claim that can be proven), and the heirs of E, if they knew it, have the right of property, which they cannot prove. Good title consists in uniting these three (possession, right of possession, and right of property) in the same person(s). The extinguishing of ancient, forgotten, or unasserted claims, such as E's in the example above, was the original purpose of statutes of limitations. Otherwise, title to property would always be uncertain.

Applications

In countries with a sophisticated private property system, documents of title are commonly used for real estate, motor vehicles, and some types of intangible property. When such documents are used, they are often part of a registration system whereby ownership of such property can be verified. In the case of real estate, the legal instrument used to transfer title is the deed. A famous rule is that a thief cannot convey good title, so title searches are routine (or highly recommended) for purchases of many types of expensive property (especially real estate). However, most personal property items do not have a formal document of title. For such items, possession is the simplest indication of title, unless the circumstances give rise to suspicion about the possessor's ownership of the item. Transfer of possession to a good faith purchaser will normally convey title if no document is required.

Political Implications Of Title

Title laws have often been manipulated by governments to discriminate against ethnic groups whom they perceived to be undesirable or inferior. For example, California prevented aliens (mainly Asians) from holding title to land until the law was declared unconstitutional in 1952. Currently there are no restrictions on foreign ownership of land in the United States, although sales of real estate by non-resident aliens are subject to certain special taxation rules. Category:Property law

Power of attorney

A power of attorney or letter of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the "principal" or "grantor (of the power)", and the one authorized to act is the "agent" or "attorney-in-fact". The attorney-in-fact acts "in the principal's name," signing the principal's name to documents and filing suit with the principal's name as plaintiff, for example. As one kind of agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. If the attorney-in-fact is being paid to act for the principal, the contract is a separate matter from the power of attorney itself, so if that contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people. The power of attorney (often called "POA" for short) may be oral—such as asking someone else to sign your name on a cheque because your arm is broken—or may be in writing. Many institutions, such as hospitals, banks, and the I.R.S., require a power of attorney to be in writing before they will honor it, and they usually want to keep an original for their records. The "equal dignity rule" is a principle of law that requires a document authorizing someone representing someone else to have been appointed with the same formality as required for the act the representative is going to perform, and it applies to powers of attorney. This means, for example, that if you give someone your power of attorney to sign the papers to sell your house, and the law requires that signature on the deed to be notarized, then your power of attorney authorizing that attorney in fact to sign the deed must be notarized, too. A power of attorney may be "special" or "limited" to one specified act or type of act, or it may be "general," and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called a "durable power of attorney". In some jurisdictions such a durable power of attorney can also function as a "living will", which can be used to appoint someone to make health-care decisions for the grantor, up to and including "pulling the plug" on machines keeping them clinically alive. New York State has enacted a "Health Care Proxy" law that requires a separate document be prepared appointing one as your health care agent. In some U.S. states and other jurisdictions it is possible to enact a springing power of attorney; i.e., a power that only takes effect after incapacitation of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but, unlike a durable power, cannot be invoked before the incapacity. This is often used to allow a spouse or family member to manage the grantor's affairs in case illness or injury makes him unable to act, while retaining the power for himself before the incapacity occurs. Unless the power of attorney has been made "irrevocable" (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney in fact it is revoked; however, if the principal does not inform third parties and it is reasonable that the third parties could rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts. Many standardized forms are available (usually for free) for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available as some individuals have used powers of attorney to unscrupulously waste that assets of vulnerable individuals such as the elderly (see elder abuse).

See also


- Estate planning
- Escrow

External links


- [http://www.lawyerintl.com/forms.php#poweratty LawyerIntl.com] - Fill-in Power of Attorney forms. Available for the 50 U.S. states
- [http://library.findlaw.com/1999/Jun/1/128910.html New Power of Attorney Protections for the Elderly] Category:Law simple:Power

Commission

In law a commission is a patent which allows a person to take possession of a state office and carry out official acts and duties. Although the term commissioned officer is a military term, civilian officers of the government such as judges, justices of the peace, marshals, and cabinet ministers also are commissioned, as well as many others. A commission does not appoint a person to an office. The appointment occurs before the granting of the commission itself; however, the commission is necessary for the person to exercise the office. This is best illustrated in the landmark Marbury v. Madison of the United States Supreme Court, which made a distinction between the appointment of a person to an office and the actual assumption of the office. The first occurs once the appointing officer, in this case the President of the United States, makes the appointing act, and the second occurs upon reception of the commission. In the United Kingdom, to put an office in commission means to take an office normally held by one person, such as Lord High Treasurer, and assign it to a board of commissioners. The office of First Lord of the Treasury is actually the most senior commissioner sharing the post of Lord High Treasurer. A commission may also be the entire government agency that operates under the authority of a government officer. A commission is also a fee or allowance given to a sales person, affiliate, realtor, stockbroker or agent in exchange for services rendered, often some percentage of the sales s/he is responsible for. A commission can also be a request to create a work, whether of commerce or art: a patron may commission a sculptor to create a specific work, or a corporation may commission a survey by a consulting firm which does such work.

See also


- writ
- warrant (legal)
- warrant officer
- Royal Commission
- Irish Land Commission
- U.S. Securities and Exchange Commission Category: Public law Category:Legal terms

Patent

:This article relates to the intellectual property right. A land grant is also called a patent. A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive and useful. The exclusive right granted a patentee is the right to prevent others from making, using, selling, offering to sell or importing the claimed invention, not the right to make, use, or sell the invention themselves. The patentee may have to comply with other laws and regulations to make use of the claimed invention. So, for example, a pharmaceutical company may obtain a patent on a new drug but will be unable to market the drug without regulatory approval. The term "patent" originates from the Latin word patere which means "to lay open" (ie. make available for public inspection) and the term letters patent, which originally denoted royal decrees granting exclusive rights to certain individuals or businesses.

Economic rationale and criticisms

There are two primary justifications for granting patents. First, in accordance with the original definition of the term "patent," it is argued that awarding patents facilitates and encourages disclosure of innovations into the public domain for the common good. Without patents, an inventor may prefer to keep his invention a secret. Disclosure of an invention allows other inventors to improve upon it and patent their improvements. Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to mankind. Second, it is broadly believed that patents incentivise economically-efficient research and development (R&D). Many corporations have annual R&D budgets of hundreds of millions or even billions of dollars. In a society without patents, it is conceivable that each corporation would lower or eliminate R&D spending, because each could reap what another had sown. This second justification closely parallels fundamental arguments underlying traditional property rights--who would build a house if another could freely occupy it? However, there are arguments in opposition to patent rights. Most fundamentally, granting a patent confers a monopoly of sorts upon an owner, because he may legally exclude competitors from using or exploiting the invention (though strictly speaking, the word "monopoly" requires that there is no viable alternative in the marketplace). In this way, patent rights differ from traditional property rights--building a house does not prevent one's neighbor from building a house, but patenting an invention bars anyone in the country of filing from producing the invention for the term of the patent. Indeed, patents have historically been granted by sovereigns to non-inventing parties in favor merely so they could profit from monopoly power. The stifling of competition due to patent rights may result in higher prices, lower quality, and shortages--characteristic problems with monopolies. Historically, countries with effective patent regimes have experienced greater economic growth and technological advances than countries where intellectual property is not protected by law. But in such countries there are many problems with the difference between rich and poor classes. People from poor classes often have no ability to initiate new business. Furthermore, industry specific experiences differ. For example, the mid-19th century dyestuffs industry faltered in Britain despite patent protections and flourished in Germany despite the absence of such protections. A more subtle problem with patent rights was put forth by law professors Michael Heller and Rebecca Eisenberg in a 1998 Science article. Building from Heller's theory of the tragedy of the anticommons, the professors postulated that useful innovations that build on earlier patented inventions can be inhibited by the high transaction costs from negotiating with the earlier patentees. According to Heller and Eisenberg, intellectual property rights may become so widely fragmented that, effectively, no one can take advantage of them. As one potential example, the professors identify therapeutic proteins and genetic diagnostic tests that would require the use of numerous patented gene fragments. In analogy to traditional property rights, it would be as if six different parties owned a house's two bedrooms, living room, kitchen, dining room, and bathroom--the utility of the house would be wasted until the parties could either negotiate an arrangement in which some or all of the parties were free to use each other's areas of the house or one party acquired ownership of the entirety of the house. Because of the difficulty in balancing the benefits and drawbacks of patent grants, there is ongoing debate over the extent to which patents should be conferred. This controversy is manifested in the ways different jurisdictions decide whether to grant patents. But recent years have seen a global embrace and augmentation of the scope of patents, as evidenced by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). One interesting side effect of modern day patent usage is that the small-time inventor can use the monopoly status to become a licensor. This allows the inventor to accumulate capital quickly from just licensing and may allow rapid innovation to occur because he/she may choose to not manage a manufacturing buildup for the invention. Thus, time and energy can be spent on pure innovation and allow others concentrate on manufacturability.

Legal implementation

A modern patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention. Generally, patents are enforced only through civil lawsuits. Patent licensing agreements are effectively contracts in which the patent owner (the licensor) agrees not to sue the licensee for infringement of the licensor's patent rights. Governments typically reserve the right to suspend or cancel a patent at will. A patent application, for a utility patent in the United States (as opposed to a design patent), must explain how to work (i.e., make and/or use) the invention(s) and must also include claims that particularly point out the invention(s) and define the scope of the subject matter for which exclusive rights are sought by the patent applicant. The exclusive rights are limited to the subject matter encompassed by the patent's claims. Patent claims are typically of the form of a long noun phrase, e.g.:
- "An apparatus for catching mice, comprising a base member for placement on a flat surface, a spring member..."
- "A chemical for cleaning windows, comprising approximately 10–15% ammonia, ..."
- "A method for computing future life expectancies, the method comprising gathering personal data including X, Y, Z, ..." Each word of a claim is considered an "element" or "limitation" of the claim. In order to exclude someone from using your patented invention in a court, you will have to demonstrate to the court that what the other person is using is included within the scope of at least one claim of the patent. For this reason, it is more valuable to obtain patent claims that include the absolute minimal set of limitations that differentiate a new invention over what came before. While the United States is moving towards more rigid claim interpretations, "equivalents" of claim elements or limitations may be permitted in determining patent infringement. The practice elsewhere in the world differs.

Example

If an inventor takes an existing patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can legally build his or her improved mouse trap only with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement. Under these circumstances, patent owners sometimes engage in cross-licensing agreements.

Governing laws

Although patents are fundamentally territorial in their nature, there are currently a number of significant international treaties governing some important aspects of patent law. The most universal of these is the WTO TRIPs Agreement, to which almost all countries are a party. The United States, the countries of the European Union, and Japan, are parties to all of the significant treaties. This has led to significant harmonization of patent law worldwide, particularly in the last decade of the 20th century and continuing into the 21st. Despite recent harmonization, the United States patent laws are unique in several significant respects. The biggest difference is that, if two people apply for a patent on the same invention, the US system awards the patent to the "first to invent", whereas in the rest of the world the "first to file" is awarded the patent. A contest between different inventors over priority is called "interferences". Another unique aspect of U.S. patent law is that an inventor has a one-year grace period after publication or sale to file a patent application, whereas in most other countries patent rights are lost if an application is not on file when a public disclosure, publication or sale takes place. As mentioned above, patents are territorial in nature. Thus, to obtain patents in multiple countries it is required to separately file patent applications in each country, or region, where a patent is sought. The Patent Cooperation Treaty (PCT), however, allows applicants to initially file a single international application, which later can be entered into separate countries or regions. Similarly, within Europe, a single patent application procedure is available through the European Patent Office, but successful applications result in multiple patents (up to 36) rather than a single European-wide patent. Such a European-wide unitary patent, or "community patent", has been the subject of discussion at the EU level since the 1970s, with no result so far. Many of the international treaties are designed to afford some recognition of filing dates to patent applications previously filed in another country. In this respect, the most important treaty is the Paris Convention, dating back to 1883. Typically, inventors are allowed one year (the priority year) from the date of their filing (in a first country) to file the application in other countries. The authority for patent statutes in different countries varies. In the United States, the Patent and Trademark Office gets its authority from statutes in Title 35 of the United States Code, which in turn is based on Article One, Section 8 of the U.S. Constitution.

Patent prosecution

Typically, an application for a patent is prepared by a professional agent known as a patent attorney or patent agent, who files the application with a patent office. The person applying for a patent generally does not need to be the inventor who created or authored the invention. However, in the United States a patent application must be filed in the name of the actual inventor or inventors, although the application can be assigned to another party, such as the employer of the inventor. At the patent office an examiner will consider the invention's patentability and whether it is otherwise eligible for grant. The entire legal process of examination and obtaining grant is called patent prosecution. Some countries do not formally review patent applications while others accept the determination of other patent offices. For example, some smaller countries, such as Belgium and the Netherlands grant a patent almost automatically or with minimal examination. This may be contrasted with the strict requirements of the United States Patent and Trademark Office, the Japanese Patent Office and the European Patent Office. The patent prosecution process typically involves: # Filing a patent application by inventor or applicant. # Formalizing of application (signatures by inventors or applicant), often filed at the same time as the application. # Establishing of a prior art search report by the patent office. # Publication at 18 months from earliest claimed filing date. US applicants can request non-publication if the application is not filed outside the United States. # Review by the examiner or the Examining Division, including communication with applicant to modify the claim language, if needed. # Grant of the patent (if it the patentability criteria are met) and publication of the issued patent. # Opposition period, during which anybody (e.g., other companies) can challenge the patent grant. This is not applicable for the US where other procedures are available, namely the reissue and reexamination procedure. In several countries, oppositions can be filed before the grant of the patent. The specifics of the examination process include: # Verifying that claims are for a patentable subject matter. # Ensuring unity of invention, since each patent application can only be for one invention (called "restriction" practice in the United States). # Formalities. Ensure that the drawings, description, and claims meet all formal requirements. # Utility or industrial applicability. # Novelty (newness) # Non-obviousness or inventive step. Different patent systems use different terms and different standards for these concepts, of which the most important probably are: patentable subject matter, novelty, non-obviousness and sufficient disclosure.

Patentable subject matter

The standard for what is patentable subject matter in the United States is "anything under the sun made by man" that is new (novel), useful, and non-obvious. Similar standards for patentability apply in Japan. Higher standards exist under the European Patent Convention (EPC), where for example computer programs as such are not patentable. Under US law, a claimed invention is deemed useful if, at the time of filing, it is capable of providing some identifiable benefit (to a person of ordinary skill in the art of the invention). The benefit must be specific, substantial, and practical. Generally speaking, there are three broad categories of patentable subject matter: processes, machines and articles of manufacture and use. A process could be a method for making something, a method for using something, or a method for doing something. Processes include business methods, most software, medical techniques, sports techniques and the like. Machines include devices and apparatuses. Articles of manufacture include mechanical devices, electrical/electronic devices and compositions of matter such as chemicals, medicines, DNA, RNA, etc. However, laws of nature, physical phenomena, and abstract ideas are not patentable. Software inventions implementing algorithms are not patentable for this reason unless it produces a "useful, concrete, and tangible result" (US law) or technical effect (European law). The US standard for the patentability of software is more liberal than that in Europe. Japanese patent law lies between the US and Europe. The patentability of software (and business methods) is quite controversial from a global perspective. Case law in the United States permits patents for software and business methods. Yet computer programs as such are not patentable in Europe, although some inventions that use software can be patented in Europe. Patents related to natural compounds (e.g. items found in rainforests) as well as medicines, medical treatment techniques, and genetic sequences are also controversial. There are significant country-by-country differences in handling these subject matters. For example, in the United States you can get a patent for a surgical method but you cannot exclude physicians from performing the surgical method.

Novelty

Novelty relates to whether something existed before its invention by the applicant or was disclosed to the public before the patent application's filing date. For public disclosures of the invention by the inventor, the United States and Canada permit a one year grace period, but most other countries provide no grace period, instead requiring "absolute novelty". An invention is not novel if there is a previously existing or disclosed device or process that includes all of the elements of the claimed invention. Identifying such "prior art" by the patent examiner is accomplished by a search of literature (technical journals, published patent applications and issued patents, etc.) that predate the filing date of the particular patent application.

Inventive step and non-obviousness

prior art Even if an applicant's claim for an invention is novel (i.e. not taught by a single prior art reference), a patent can still be denied to the applicant if the claimed subject matter would have been obvious to someone else skilled in the technical field of the invention. The purpose of forbidding patents on obvious technologies is to prevent a person from obtaining exclusive rights to what is effectively already in the possession of the public, even if documentation of the exact form of the applicant's embodiment happens to be lacking. Accordingly, obviousness asks the question whether all previously known technology related to the invention would teach a "person having ordinary skill in the art", e.g. someone who does the type of things relating to the technical field of the invention, how to make the invention. Many patent applications in the United States, Europe and Japan are initially rejected as being obvious. The standard of obviousness and its application are more subjective and controversial than that of novelty. If the requirements are set very high, virtually nothing is patentable. Similarly if the requirements are very low, all kinds of trivial inventions can receive patents. Generally, the patent laws make it difficult for patent examiners to employ hindsight reasoning in rejecting a claim as obvious, by requiring some teaching that would motivate a person of ordinary skill in the art to modify the technology found in the prior to arrive at the claimed invention. In the United States, objective evidence or secondary considerations of non-obviousness can overcome a proper obviousness rejection. Such secondary considerations can include unexpected results, commercial success, long-felt need, failure of others, copying by others, licensing, and skepticism of experts. As a practical matter, during examination the patent examiner will attempt to locate two or more references that when combined show all of the features of the claimed invention and indicate that one of ordinary skill would make that combination. The threshold for the obviousness or inventive step standard can be particularly ambiguous in genus-species situations. For example, if an inventor finds two species of a particular genus, e.g. two particular chemical compositions out of 10,000 in the broader genus, should the inventor be entitled to a patent on the entire genus? Further, if someone has discovered the genus already, but not isolated any of the species, are the species obvious in light of the genus? Under US law, the species may still be patentable if they produce results that are unexpectedly different from those of other previously known members of the genus. For example, suppose a software inventor unveils the quicksort sorting algorithm to the world but only discloses it using integers (this is the species). Can someone else then obtain a patent on an "improved" quicksort suitable for use on any partially ordered set (this is the genus)? Under US law, this is not a question of obviousness since a claim to the genus lacks novelty as the species is known. Finally, in spite of all precautions, some patents still give a general impression of triviality. An example is given by the "combover" patent (, filed December 1975), which has also been awarded the 2004 Ig Nobel Prize in engineering for its apparently unintentional ridiculousness.

Term of patent

As TRIPS agreement declares, the maximum term of an issued patent is 20 years from earliest claimed filing date. In the United States, for applications filed after to June 8, 1995, the patent term is 20 years from the earliest claimed filing date (see also: Term of patent in the United States). Also, in several countries there are multiple types of patents, and the 20 year term frequently only applies to utility patents and not design, petit, or other kinds of less heavily examined patents. For example, the term of a U.S. design patent, which covers the ornamental shape of objects, lasts 14 years from its issue date.

Example

If the better mousetrap patent is filed on January 1, 1996 and is issued or granted on January 1, 2000, it will lapse twenty years from filing: January 1, 2016. However, if the inventor comes up with a second improvement and claims priority to her first patent when filing the second patent on January 1, 1998, that second patent, after grant, would lapse 20 years from the earliest claimed priority: January 1, 2016.

Miscellaneous

While a patent grants an exclusive right on the invention claimed, many national laws provide for special rules on granting compulsory license to requesting third parties when the invention is not put into practice within a specified amount of time or is put into practice in a manner that is deemed to be insufficient for the needs of the country. The licensee must pay reasonable compensation, to be fixed by an independent tribunal if not agreed. In practice, obtaining a compulsory license is not easy. Secrecy provisions are also present in many national laws in case the invention for which a patent is filed is deemed to have military interest. A patent might also be seized by the State under grounds of public utility. This is akin to the state's power of eminent domain. Again, as for compulsory licensing, an obligation to pay reasonable compensation, to be fixed by an independent tribunal if not agreed, is invariably provided. For example, during the 2001 anthrax attacks, it was rumoured that the US had considered seizing the patent on the Cipro antibiotic from the Bayer Corporation. However, the anthrax attacks did not continue and the patent was not seized. The World Trade Organization Agreement 1994 imposes restrictions on both compulsory licensing and seizure (TRIPs Agreement, article 31).

History of patents

Bayer Corporation Although there is evidence suggesting that something like patents was used among some ancient Greek cities, patents in the modern sense originated in Italy. The first patent law was a Venetian Statute of 1474 in which the Republic of Venice issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic in order to obtain legal protection against potential infringers. England followed with the Statute of Monopolies in 1623 under King James I. Prior to this time, the crown would issue letters patent providing any person with a "monopoly" to produce particular goods or provide particular services. The first of them was granted by Henry VI in 1449 to a Flemish man a 20 year monopoly on the manufacture of stained glass. This was the start of a long tradition by the English Crown of the granting of "letters patent" (meaning 'open letter', as opposed to a letter under seal) which granted "monopolies" to favoured persons (or people who were prepared to pay for them). This became increasingly open to abuse as the Crown granted patents in respect of all sorts of known goods (salt, for example). This power, which was to raise money for the crown, was widely abused, and court began to limit the circumstances in which they could be granted. After public outcry, James I was forced to revoke all existing monopolies and declare that they were only to be used for 'projects of new invention'. This was incorporated into the Statute of Monopolies in which Parliament restricted the crown's power explicitly so that the King could only issue letters patents to the inventors or introducers of original inventions for a fixed number of years. In the reign of Queen Anne the rules were changed again so that a written description of the article was given. Section 6 of the Statute refers to "manner[s] of new manufacture... [by] inventors", and this section remains the foundation for patent law in New Zealand and Australia. The Statute of Monopolies was later developed by the courts to produce modern patent law; this innovation was soon adopted by other countries. The Patent Commission of the U.S. was created in 1790. Its first three members were Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph. On July 31, 1790 inventor Samuel Hopkins of Pittsford, Vermont became the first person to be issued a patent in the United States. His patented invention was an improvement in the "making of Pot Ash by a new apparatus & process". The earliest patent law required that a working model of each invention be produced in miniature. The Patent Law was revised for the first time in 1793. It adopted a simple registration system where a patent would be granted for a $30 fee. The Patent Board was replaced by a clerk in the Department of State. James Madison, Secretary of State, created a separate Patent Office within the State Department and he appointed Dr. William Thornton as its first superintendent in May 1802. On May 5th, 1809 Mary Dixon Kies became the first woman to be awarded a U.S. patent. Later, in 1810, the Patent Office moved from the Department of State to Blodgetts Hotel. In the same year, they opened the patent model storage to the general public. The first 10,000 patents issued by the USPTO from July 1790 to July 1836 were destroyed in a fire in December 1836. About 2800 of them were later recovered, but the majority of them are still missing. The recovered patents are now called X-Patents because their patent numbers end with an "X."

Patent models

One of the most interesting early features of the U.S. patent system was the requirement of patent models. A patent model was a scratch-built miniature model no larger than 12" by 12" that showed how the patent works. Since most early inventors were ordinary people without technological or legal training, it was difficult for them to submit formal patent applications, due to the required small-scale models. However, to some degree, it was beneficial for these amateur inventors to submit a model. This is because their inventions might not be fully comprehended otherwise. Patent models were required since 1790. The Congress of the U.S. abolished the legal requirement for them in 1870. The U.S. Patent Office kept this requirement until 1880. However, some inventors still willingly submitted models at the turn of the 20th century. A working model, or other physical exhibit, may be required by the U.S. patent office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices (Source: USPTO web site).

See also

Legal concepts

Assignor estoppel -- Claim -- Defensive publication -- Disclaimer -- Doctrine of equivalents -- Essential patent -- Exhaustion of rights -- First to file -- First to invent -- Industrial applicability -- Interference proceeding -- Inventive step -- Inventor -- Letters patent -- Non-obviousness -- Novelty -- On-sale bar -- Patent family -- Patent infringement -- Patent misuse -- Patent pending -- Patent pool -- Patentability -- Patentable subject matter -- Person having ordinary skill in the art -- Petition to make special -- Prior art -- Priority right -- Prosecution history estoppel -- Provisional rights -- Reasonable and Non Discriminatory Licensing -- Reduction to practice -- Research exemption -- Submarine patent -- Sufficiency of disclosure -- Supplementary protection certificate -- Term of patent -- Transfer -- Unity of invention -- Utility

Special types of patents and patent applications

Biological patent -- Business method patent -- Chemical patent -- Design patent -- Gebrauchsmuster -- Kokai -- Kokoku -- Patent application (see also: Continuing patent application (incl. continuation, divisional and cip) -- Provisional application) -- Software patent (see also: List of software patents -- Software patent debate -- Software patents under the European Patent Convention -- Software patents under the Patent Cooperation Treaty -- Software patents under TRIPs Agreement -- Software patents under United States patent law) -- Utility model

Organizations and patent offices

African Regional Intellectual Property Organization (ARIPO) -- Canadian Intellectual Property Office (CIPO) -- Eurasian Patent Organization (EAPO) -- European Patent Organisation (EPO or EPOrg) (incl. European Patent Office) -- Organisation Africaine de la Propriété Intellectuelle (OAPI) -- United Kingdom Patent Office -- United States Patent and Trademark Office (USPTO) -- World Intellectual Property Organization (WIPO)

Treaties, conventions and other legal texts and frameworks

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) -- American Inventors Protection Act (AIPA) -- Budapest Treaty -- Community Patent (proposed) -- EU Directive on the Patentability of Computer-Implemented Inventions (proposed, then rejected) -- EU Directive on the Patentability of Biotechnological Inventions -- European Patent Convention (EPC) -- European patent law -- European Patent Litigation Agreement (EPLA) (proposed) -- London Agreement (concluded but not in force yet) -- Paris Convention for the Protection of Industrial Property -- US Patent Reform Act of 2005 -- Patent Cooperation Treaty (PCT) -- Patent Law Treaty (PLT) -- Substantive Patent Law Treaty (SPLT) (proposed) -- Statute of Monopolies 1623 -- Strasbourg Convention -- United States patent law

Other

Chartered Institute of Patent Agents (CIPA) -- epoline -- esp@cenet -- Industrial design rights -- Industrial property -- INPADOC - Intellectual property -- International Patent Classification (IPC) -- List of top United States patent recipients -- Patent attorney -- Patent clerk -- Patent model -- Patent troll -- United States Patents Quarterly -- X-Patent

External links


- [http://www.legalmatch.com/law-library/article/patents.html LegalMatch] Patent Legal Resource
- [http://www.ipfrontline.com/ IPFrontline™] PatentCafe's Intellectual Property & Technology Magazine
- [http://www.inventorfraud.com/ National Inventor Fraud Center] - Information about the invention process and invention marketing companies.
- [http://www.patentlawportal.com Patent Law Portal] - Patent Law News, Articles and Resouces
- [http://www.ipnewsflash.com IP Newsflash recent case law and developments regarding patents]

Patent Office Web sites and other regional info


- [http://www.ipaustralia.gov.au/ IP Australia] incorporates the Patent, Designs and Trade Marks offices
- [http://www.uspto.gov U.S. Patent and Trademark Office]
- [http://strategis.ic.gc.ca/sc_mrksv/cipo/ Canadian Intellectual Property Office]
  - [http://patents1.ic.gc.ca/ Canadian Patents Database]
- [http://www.jpo.go.jp/ Japan Patent Office]
- [http://www.kipo.go.kr/kpo/ Korean Intellectual Property Office]
- European Patent Office
  - [http://gb.espacenet.com/ European Network of Patent Databases]
- [http://www.patent.gov.uk/ UK Patent Office]
- [http://www.nkpal.com/ipr/ NKPAL's IPRs Division] - IPRs information and Patent filing in India.
- [http://www.wipo.int/ World Intellectual Property Organisation]
- [http://www.info-brevetti.org/ Innovation and patent information in Italy]

Patent organizations


- [http://www.pubpat.org/index.html The Public Patent Foundation] PUBPAT Represents the Public's Interests Against Wrongly Issued Patents and Unsound Patent Policy
- [http://www.ipo.org Intellectual Property Owners Association]

Patent searches and downloads


- [http://www.GetThePatent.com GetThePatent.com] - Online patent search database offering instantaneous access to complete multi-page USPTO, EPO, WIPO (PCT), British, French, German, Japanese, and Swiss patent documents received via your printer, email, or web browser.
- [http://www.braindex.com/patent_pdf/ Free US and Worldwide Patent PDFs] - Download patents for free.
- [http://www.pat2pdf.org pat2pdf.org] - Free lookup and download of U.S. patents in PDF form
- [http://www.freepatentsonline.com FreePatentsOnline.com] - Free US and international patent searching database, PDF downloading, list of funny patents.
- [http://nip.blogs.com/patent/2004/09/guide_to_downlo.html The Guide to Downloading Copies of Patents from Internet]
- [http://www.ipdiscover.com/ IP-Discover] - Search and retrieve patents from the public databases.
- [http://www.search4ip.com/ search4ip] - Free patent search.
- [http://www.patentmatic.com/ PatentMatic] - Free patent downloads (US, European & others).
- [http://www.IAMcafe.com PatentCafe's International Patent Database with Semantic / Natural Language Search Engine]

Weird and historical patents


- [http://www.patent.freeserve.co.uk/ Patently Absurd British Patents]
- [http://www.library.umaine.edu/patents/historical.htm Information on Historical Patents]
- [http://www.patentlysilly.com Patently Silly]
- [http://ipfunny.blogs.com IP Funny Blog] Category:Intellectual property
- ja:特許 th:สิทธิบัตร

Diploma

A diploma (from Greek diploma) is a certificate or deed issued by an educational institution, such as a university, that testifies that the recipient has successfully completed a particular course of study, or confers an academic degree. In some countries, such as the United Kingdom and Australia, such a document is called a testamur or testimonium, whilst in Ireland it is generally called a parchment.

As an academic award

In some countries, such as Australia, a diploma is a specific academic award of lower rank than an academic degree. In Ireland a National Diploma is below the standard of the honours bachelor degree, whilst the Higher Diploma is taken after the bachelor degree. In Germany the diploma (in German Diplom) is the standard academic degree, comparable with the Master's degree. In Hong Kong, higher diploma and associate degree are below the standard of the honours bachelor degree. Certificate (not to be confused with postgraduate certificate) and diploma are below the standard of higher diploma and associate degree. Postgraduate Certificates and Postgraduate Diplomas are taken after the bachelor degree, and are more vocational oriented than a master's degree.

See also


- High school diploma
- Certificate category:qualifications

Common law

:For other meanings of the term, within the field of law, see common law (disambiguation). The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists.

History of the common law

Common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century, although many criminal codes reflect legislative attempts to codify the common law. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law. Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems. Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint. As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens. In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.

Common law legal systems

The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, the states of the United States (except Louisiana), Canada (except Quebec civil law), Australia, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law. The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system. The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for instance, in matters of criminal and commercial law). Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems. The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.) The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

Basic principles of common law

Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date. By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism). Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.

Works on the common law

The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines. Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and in previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).

See also


- Arraignment
- Civil law (legal system)
- Common-law marriage
- English law
- Grand jury
- Jury trial
- List of legal topics
- Scots law

External links


- [http://biotech.law.lsu.edu/Books/Holmes/claw_c.htm The Common Law] by Oliver Wendell Holmes Jr.
-
- [http://www.great-legal-advice.com/criminal-law/civil-and-common-law.htm Common law]
- [http://ausicl.com The Australian Institute of Comparative Legal Systems] Category:Legal history ja:コモン・ロー

Seal (device)

A seal is an impression printed on, embossed upon, or affixed to a document (or any other object) in order to authenticate it, in lieu of or in addition to a signature. Only in the case of a dry seal the imprint is made as a relief resulting from the greater pressure on the paper where the high parts of the seal touch; in all other cases a medium (in liquid of trough heatig liquified state) is used, allowing the choice of another color than the paper's. The word is also used as the generic term to describe the devices used to make such impressions, such as (signet) rings.

Seal as impression

signature signature tag or tail of an English deed dated 1638.]] The use of seals, in wax (sealing wax), in lacker or embossed on paper, to authenticate writings, is a practice as old as writing itself. Seals of this nature were applied directly to the face of the document or attached to the document by cords in the owner's, or to a narrow strip of the document sliced and folded down as a tail but not detached from the document. This helped maintain authenticity by not allowing the reuse of the seal. If a forger tried to remove the seal in the first case, it would break. In the other cases, although the forger could remove the seal intact by ripping the cords from the paper, he'd still have to separate the cords to attach it to another document, which would destroy the seal as well because the cords had knots tied in them inside the wax seal. Most governments still attach seals to letters patent. While many instruments required seals for validity (i.e. the deed or covenant) it is rather uncommon for private citizens to use seals anymore. Seals were also applied to letters and parcels to indicate whether or not the item had been opened since the seal was applied. Seals were used both to seal the item to prevent tampering, as well as to provide proof that the item was actually from the sender and is not a forgery. To seal a letter, for example, a letter writer would compose the letter, fold it over, pour wax over the joint formed by the top of the page of paper, and then impress a ring, metal stamp, or other device. Governments would often send letters to citizens under the governmental seal for their eyes only. These were called letters secret. Seals are no longer commonly used in this way, except for ceremonial purposes. The most common uses of the seal today are: # to certify that a person has given an oath or acknowledgement, see notary public # to certify the correctness of a copy of a record maintained by a court or other government agency.

Seal as device

Seals were used in the earliest civilisations and are of considerable interest in archaeology. In ancient Mesopotamia seals were engraved on cylinders, which could be rolled to create an impression on clay e.g., as a label on a consignment of trade goods. From Ancient Egypt seals in the form of signet-rings of kings have been found. In the Indus Valley Civilisation, rectangular seals were used to label trade goods and also had other purposes.

Seals in East Asia

:See also Chinese seal Known as yingzhang in China and inkan or hanko in Japan, ink seals have been used in East Asia as a form of written identification since the invention of writing. Even in modern times, seals are still commonly used instead of handwritten signatures to authenticate official documents or financial transactions. Both individuals and organizations have official seals, and they often have multiple seals in different sizes and styles for different situations. East Asian seals usually bear the name of the person or organization represented, but they can also bear a poem or a personal motto. Sometimes both types of seals, or one large seal that bears a name and a motto, are used to authenticate official documents. Seals are so important in East Asia that foreigners who frequently conduct business there also commission the engraving of a personal seal. East Asian seals are carved from a variety of hard materials, including wood, soapstone, and jade. East Asian seals are traditionally used with a red oil-based paste consisting of finely ground cinnabar, which contrasts with the black ink traditionally used for the ink brush. Red chemical inks are more commonly used in modern times for sealing documents. Seal engraving is considered a form of calligraphy in East Asia. Like ink brush calligraphy, there are several styles of engraving. Some engraving styles emulate calligraphy styles, but many styles are highly stylized, so stylized that the characters represented on the seal are difficult for untrained readers to identify. Seal engravers are considered artists, and in the past, several famous calligraphers also became famous as engravers. Some seals, carved by famous engravers, or owned by famous artists or political leaders, have become valuable as works of art and history. Because seals are commissioned by individuals and carved by artists, every seal is unique, and engravers often personalize the seals they create. The material of seal and the style of the engraving are typically matched to the personality of the owner. Seals can be traditional or modern, conservative or expressive. Seals are sometimes carved with a figure on the owner's zodiac animal on the top of the seal. Seals are also sometimes carved with images or calligraphy on the sides. Although a utilitarian instrument of daily business in East Asia, Westerners and other non-Asians seldom see Asian seals, except on Asian paintings and works of calligraphy. All traditional paintings in China, Japan, Korea, Vietnam, and the rest of East Asia are watercolor paintings on silk, paper, or some other surface that the red ink from seals can adhere to. East Asian paintings often bear multiple seals, including one or two seals from the artist, and the seals from the owners of the painting. East Asian seals are the predecessors to block printing. The Chinese invented both paper and the printing press centuries before they were invented again in Europe.

See also


- Sigillography</