“Torts” is a general classification encompassing several different civil causes of action providing a private remedy (usually money damages) for an injury to P caused by the tortious conduct of D. Each tort cause of action is separately named and defined, each with its own rules of liability, defenses, and damages. There is no useful general definition of “tort” or “tortious conduct.”

Tort law is primarily judge-made law, and no American jurisdiction has yet adopted a tort “code.” However, tort law is being increasingly modified by statute.

In tort litigation, judges and juries have distinct functions. Juries decide questions of fact, such as (1) what happened, (2) certain legal consequences of those facts (e.g., was D negligent, was P an invitee), and (3) P’s damages. Judges decide issues of law, such as (1) whether D had a duty to P and the nature and extent of that duty, (2) the elements of the cause of action or defense, and (3) whether certain legal rules apply (e.g., can a particular statute be used to set the standard of care). The judge also can decide fact issues if she determines that the evidence overwhelmingly favors one conclusion. The judge also applies rules of civil procedure and evidence.



  1. Intent

1. Rule

In tort law, conduct is intentional if the actor (a) desires to cause the consequences of his act, or (b) believes that the consequences are certain to result from it.

2. Proof of Intent

D will be presumed to have intended the natural and probable consequences of his conduct.

3. Intent Distinguished From Motive

Intent is the desire to cause certain immediate consequences; motive is the actor’s reason for having that desire. Motive is usually irrelevant on the issue of liability.

4. Intentional Conduct Distinguished From Negligent or Reckless Conduct

If harm is intended, the tort is intentional. If not, and D’s conduct merely creates a foreseeable risk of harm, then D’s conduct is either negligent or reckless depending upon the magnitude and probability of the risk and D’s consciousness of it.

5. Children

Young children may be found capable of intentional torts even though too young to be capable of negligence.

6. Mentally Incompetent Persons

In most jurisdictions, a mentally incompetent or insane person is liable for his intentional torts, even when incapable of forming a purpose or understanding the consequences of his conduct.

7. Transferred Intent

D’s intent to commit any one of the original trespass-based torts (assault, battery, false imprisonment, trespass to land or chattels) automatically supplies the intent for any of the other four. It also transfers from X (D’s intended victim) to P (D’s actual but unintended victim).

  1. Scope of Liability (Proximate Cause)

Broader scope of liability rules apply to intentional torts.

  1. Battery

1. Rule

Battery is a harmful or offensive contact (direct or indirect) with P’s person, caused by D, with the required intent. D must have acted intending to cause a harmful or offensive contact with P (or another), or an apprehension of such a contact.

2. P’s Person

P’s “person” includes his body and those things in contact with it or closely associated with it.

  1. P’s Awareness

P need not have been aware of the contact at the time.

4. No Harm Intended

D need only have intended the contact. It does not matter that D intended no harm or offense.

5. Harmful or Offensive Contact

A harmful contact is one which produces bodily harm. An offensive contact is one which offends a reasonable sense of personal dignity, as by being hostile, insulting, loathsome, or unduly personal.

  1. Consent

If P consents to the contact, D is privileged to make it and there is no tort.

  1. Assault

1. Rule

Assault is an act by D, done with the required intent, which arouses in P a reasonable apprehension of an imminent battery. D must have acted intending to cause a harmful or offensive contact with P (or another), or to cause an imminent apprehension of such a contact.

2. Apprehension

P must have been aware of D’s threatening act at the time, before it is terminated. Apprehension is all that is required; P need not be afraid. If D’s assault is directed against P, D is subject to liability even though P’s apprehension is unreasonable.

An assault may occur even when D’s act is directed against a third person, or when it is apparent to P that D intended only an assault, provided P reasonably perceives the threat of a battery to P.

3. Imminent

The contact must be perceived as imminent. There must be an apparent intent and apparent present ability to carry out the threat immediately.

Mere words, unaccompanied by a physical act, are not an assault. But words may give meaning to movement. A conditional threat may be an assault, unless D is privileged to enforce the condition.

  1. False Imprisonment

1. Rule

False imprisonment occurs when D, intending to confine P (or another) within boundaries fixed by D, so confines P, and P is conscious of the confinement or is harmed by it.

2. Intent

The requisite intent is merely the intent to confine. A mistake of identity is no excuse, nor is a good faith belief that the confinement is justified.

3. Confinement

Confinement occurs when P is prevented from leaving a given area, even when that area is relatively large. The confinement must be complete, and P must have no reasonable or safe exit or escape known to him. The confinement may be by means of actual or apparent physical barriers, physical force, or credible threats of physical force, or duress sufficient to vitiate P’s consent, as where D threatens to harm another or P’s valuable property, or restrains such property. However, merely moral or social pressure is not sufficient. Refusal to release from a once-valid confinement is also sufficient.

Confinement by color of legal authority is sometimes called false arrest. If D has or purports to have legal authority to take P into custody, exercises it, P believes that D has or may have such authority, and P submits against his will, there is confinement. P must be aware of the confinement, unless P suffers physical harm from it.

4. Shoplifters

Shopkeepers may have a privilege to detain persons suspected of shoplifting for a reasonable time for the purpose of conducting an investigation.

5. Accessories

To be liable for false imprisonment, D must have been an active and knowing participant in procuring or instigating the confinement, including its wrongful aspect.

  1. Intentional or Reckless Infliction of Emotional Distress

1 Rule

When D, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to P, D is subject to liability to P for that emotional distress and for any resulting bodily harm.

2. D’s Conduct

D’s conduct must be extreme, outrageous, intolerable, and not merely insulting, profane, abusive, annoying, or even threatening. Unless D knows of some special sensitivity of P, mere verbal abuse, namecalling, rudeness, insolence, and threats to do what D has a legal right to do are generally not actionable, absent circumstances of aggravation.

3. P’s Response

Only severe emotional distress is actionable. Mere unhappiness, humiliation, or mild despondency for a short time is not sufficient. However, most jurisdictions no longer require that the mental suffering have a physical manifestation or result in bodily harm.

4. Abuse of Power

A common fact situation resulting in liability involves an abuse by D of some relation or status which gives him actual or apparent power to damage P’s interests, where D’s threats go beyond the ordinary demands or means of persuasion and become flagrant abuses of power in the nature of extortion.

5. Conduct Directed At Third Persons

D’s distress-producing conduct directed at a third person (T) is actionable by P if D intentionally or recklessly causes severe emotional distress to P by such conduct, provided either: (1) P witnesses D’s conduct, T knows of P’s presence, and T is a member of P’s immediate family; or (3) P’s severe emotional distress results in bodily harm. In compelling cases, the presence requirement may be relaxed.

6. Proximate Cause

The “eggshell plaintiff” rule does not apply to this tort. D is liable only to the extent that P’s emotional response is within the bounds of normal human reactions to D’s conduct, unless D knew that P was extraordinarily sensitive.

7. Transferred Intent

The doctrine of transferred intent does not apply insofar as D’s intent was to commit some other intentional tort.

8. Public Official and Public Figure Plaintiffs

“Public officials” and “public figures” may not recover for emotional distress resulting from a media publication unless the publication contains a false statement of fact that was made with “actual malice” (under the NY Times standard).

9. Mishandling of a Corpse

Next of kin may have a claim for intentional or reckless mishandling of a corpse.

  1. Trespass to Land

1. Rule

D trespasses on P’s land when he intentionally (a) himself enters the land or causes a thing or third person to do so, (b) remains on the land after his privilege to be there has expired, or (c) fails to remove from the land a thing which he is under a duty to remove. P may sue in trespass only if P is in possession of the land or is entitled to immediate possession.

2. Intent

The intent required is merely to enter upon the land, cause the entry, or remain. D’s good faith (but erroneous) belief that he has a right to be there, or his reasonable mistake concerning title, right to possession, consent, or privilege, is no defense.

3. Manner

The trespass may be directly or indirectly caused.

Vertical Boundaries. The boundaries of land extend above and below the surface, and therefore the trespass may be by an intrusion at, above or beneath the surface.

Exception: Aircraft. Aircraft flights over private property present a special problem. Several theories are used to balance the possessor’s rights against the needs of aviation.

Causing Trespass by Things. It is no less a trespass if D does not personally enter the land but merely causes some thing to do so.

4. Damages

If the trespass is intentional, the tort is complete without proof of any actual harm. Of course, P may recover for all harm resulting to his property, and persons and things upon it, and a broad range of consequential damage.

5. Reckless or Negligent Intrusions

An intrusion upon P’s land may result from D’s negligent conduct or abnormally dangerous activity. In such cases liability is determined in the usual fashion by the rules of those other torts. Actual harm must be shown.

  1. Chattels

1. Trespass to Chattels

Rule. D commits a trespass to P’s chattel when he intentionally interferes with it, either by physical contact or by dispossession. P must be in possession or entitled to future possession of the chattel.

Intent. No wrongful motive is necessary. The intent required is merely to act upon the chattel. Thus, D’s good faith, reasonable (but mistaken) belief that he owns the chattel or for some other reason is privileged to deal with it is no defense.

Interference by Physical Contact. One form of trespass is interference by physical contact, which may be direct or indirect, and consists of any impairment of the chattel’s condition, quality or value.

Dispossession. A dispossession consists of taking a chattel from P’s possession without his consent, or by fraud or duress, or into custody of the law; barring P’s access to the chattel; or destroying it while it is in P’s possession. Dispossession even for a short time is still a trespass.

Damages. If the trespass consists of physical contact, P must prove actual damages. But any dispossession is a trespass for which at least nominal damages may be awarded.

2. Conversion

Rule. Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with P’s right to control it that D may justly be required to pay P its full value. It is a trespass to the chattel which is so serious, aggravated, or of such magnitude as to justify forcing D to purchase it.

Test. There is no simple test for determining when the interference is so aggravated as to constitute a conversion. The important factors are: (1) the extent and duration of D’s exercise of dominion or control; (2) D’s intent to assert a right which is in fact inconsistent with P’s right of control; (3) D’s good faith; (4) the extent and duration of the resulting interference with P’s right of control; (5) the harm done to the chattel; and (6) the inconvenience and expense caused to P.

Intent. While D’s beliefs, motives and intentions may be relevant in assessing the seriousness of his interference, the only intent required for the tort is an intent to exercise dominion or control over the chattel. Thus, D’s good faith or honest mistake is no defense if the interference is sufficiently great (e.g., destruction).

Ways In Which Conversion May Occur. A conversion may occur when D (1) acquires possession, (2) moves the chattel, (3) makes an unauthorized transfer, delivery, or disposal, (4) withholds possession, (5) destroys or materially alters the chattel, or (6) under certain circumstances, merely uses the chattel.

Types of Chattels. Originally, only tangible chattels could be converted. Today, most courts have extended it to include intangible personal property represented by, or merged into, a document.

Damages. Damages include the full value of the chattel at the time of conversion, plus interest. Under the prevailing view, P is never required to (but may) accept a tender of the chattel’s return in mitigation of damages.

3. Trespass and Conversion Distinguished

A conversion is a trespass to a chattel that is so serious that D can be forced to buy it. In such cases, P may choose either action.


  1. Privilege

1. Introduction

“Privilege” is the general term applied to various defenses in which special circumstances justify conduct which would otherwise be tortious.

2. Other Defenses Distinguished

Privileges differ from other defenses such as contributory negligence and immunities which operate to reduce or bar P’s recovery but do not negate the tortious character of D’s conduct. Privileges do.

3. Types

Privileges may be divided into two general categories: (a) consent, and (b) privileges created by law irrespective of consent. Today, both types are affirmative defenses.

4. Mistake

In general, D’s mistaken belief that he has a privilege is per se no defense to an intentional tort, nor does it negate the required intent. However, D’s mistake may be relevant in determining the existence of a privilege.

  1. Consent

1. In General

Consent is a defense to almost any tort, but it is applied most frequently to the intentional torts.

2. Existence

There is consent when one is, in fact, willing for conduct to occur. It is a matter of P’s subjective state of mind. It is valid whether or not communicated.

3. Apparent Consent

P’s words or conduct manifesting consent are sufficient to create a privilege to D to act in light of the apparent consent, even if P’s actual (but undisclosed) state of mind was to the contrary.

4. Conduct

Conduct can manifest consent. Even silence and inaction may indicate consent when such conduct would ordinarily be so interpreted.

5. Custom, Prior Relationship

Consent may be inferred from custom and usage, from prior dealings between the parties, or from the existence between them of some relationship.

6. Capacity to Consent

Consent can only be given by one having the capacity to do so, or one authorized to consent for him. Infancy, intoxication, or mental incapacity normally will vitiate effective consent.

7. Implied Consent

When an emergency actually or apparently threatens death or serious bodily harm and there is no time or opportunity to obtain consent, consent will be implied.

8. Scope of Consent

The consent is to D’s conduct, and once given, P cannot complain of the consequences of that conduct, however unforeseen. But D’s privilege is limited to the conduct consented to or acts substantially similar. The consent may be conditioned or limited as to time, place, duration, area, and extent.

9. Mistake, Ignorance, Misrepresentation

Even though given pursuant to P’s material mistake, misunderstanding or ignorance as to the nature or character of D’s proposed conduct or the extent of the harm to be expected from it, P’s consent is effective as manifested unless D knows of the mistake or induced it by his misrepresentation.

10. Informed Consent

Under the doctrine of informed consent, if D (e.g., a physician) misrepresents or fails to disclose to P the material risks and possible consequences of his conduct (e.g., a medical procedure), P’s consent is not an informed one. Under the prevailing view, the failure to disclose mere risks is deemed collateral, and therefore a matter of negligence only. It does not vitiate the consent and therefore there is no battery.

11. Duress

Consent given under duress is not effective. Duress includes threats of immediate harm directed against P, his family or valuable property, but usually not threats of future harm or of economic duress.

12. Consent to Crime

Under the majority view, the consent is not effective if the conduct consented to is a crime, at least in battery cases. The minority and Restatement view is that consent to criminal conduct is valid unless in violation of a statute making conduct criminal to protect a class of persons irrespective of their consent.

  1. Self–Defense and Defense of Others

1. Self–Defense

D has a privilege to use so much force as reasonably appears to be immediately necessary to protect himself against imminent physical harm threatened by the intentional or negligent conduct of another. D may use force likely to inflict death or serious bodily harm only when (a) he reasonably believes that he is in danger of similar harm, and (b) he is not required to retreat or escape.

The privilege exists even when D reasonably but mistakenly believes that self-defense is necessary. The reasonableness of D’s belief is judged by the objective standard of the reasonable person of average courage.

2. Defense of Third Persons

Rule. D is privileged to come to the defense of any other person under the same conditions and by the same means as he would be privileged to defend himself.

Effect of Mistake. Under the majority view, D’s privilege exists only if and to the extent that the third person in fact had a right of self-defense.

3. Duty to Protect

If D is under a duty to protect another or his land or chattels, he is privileged to use reasonable force or confinement to do so.

  1. Defense and Recovery of Property

1. Defense of Property

Rule. A possessor is privileged to use reasonable force to expel another or a chattel from his land, or to prevent another’s imminent intrusion upon or interference with his land or chattels, or to prevent his dispossession, even though such conduct would otherwise be a tort.

Request. The possessor must first request that the intruder desist, unless it appears that the request would be useless or cannot be made before substantial harm is done.

Amount of Force. D may then use force or the threat of force, but only such actual force as is minimally required to prevent or terminate the intrusion. Force likely to cause death or great bodily harm is not privileged. The intruder is not privileged to resist.

Watchdogs, Spring Guns. Spring guns, concealed traps, and other mechanical devices, and vicious animals, used to defend D’s property, are used at D’s risk. D is subject to liability for harm they cause to an intruder which he would not have been privileged to inflict himself if present.

Effect of Mistake. If the intruder in fact has one of these privileges, D has no privilege to defend his property, even though D through ignorance or mistake reasonably believes that the intruder has no privilege, unless the intruder himself was responsible for that mistake. Conversely, the intruder’s mistake does not defeat D’s privilege unless the mistake was caused by D’s fault.

Property of Others. There is a similar privilege to defend the property of others, at least if the third person is a member of D’s immediate family or household or is one whose possession D has a duty to protect.

2. Forcible Retaking of Chattels

There is a limited self-help privilege to use force or threats of force to recapture D’s chattel, wrongfully and forcibly taken from D’s possession, even under claim of right, or obtained by fraud or duress. D must be in fresh pursuit, and first demand its return. Then, only reasonable force may be used.

3. Possession of Land

D, who is entitled to the immediate possession of land, may peacefully enter and retake possession without liability for trespass, and thereafter defend his possession.

  1. Necessity

1. Rule

The privilege of necessity may be invoked when D, in the course of defending himself or his property (or others or their property) from some threat of imminent serious harm for which P is not responsible, intentionally does some act reasonably deemed necessary toward that end, which results in injury to P’s property and which would otherwise be a trespass or conversion.

2. Public Necessity

If the danger affects an entire community, or so many persons that the public interest is involved, the privilege is complete and D’s tort liability is entirely excused.

3. Private Necessity

If the danger threatens only harm to D or his property (or to a third person or his property), D is privileged to commit the act which causes the trespass or conversion, but he is subject to liability for compensatory damages for any resulting actual physical harm.

4. Scope of Privilege

D’s reasonable belief that his act is necessary is sufficient; but his conduct must be reasonable considering the extent of the threatened harm in relation to the foreseeable damage to P’s property.

  1. Authority of Law

1. Rule

One acting under authority of law is privileged, under certain circumstances, to commit acts which would otherwise constitute an assault, battery, confinement, trespass, or conversion. The scope of the privilege varies according to the type of authority being exercised and other factors.

2. Scope: Ministerial vs. Discretionary Acts

If D must exercise significant judgment or discretion in determining whether or how to act, the act is privileged if done in good faith. Ministerial acts are not privileged if done improperly, regardless of D’s good faith.

3. Scope: Jurisdiction

Acts done without jurisdiction are not privileged. But acts merely “in excess of” D’s jurisdiction are privileged if done in good faith.

4. Types of Acts

The most common types of such acts are arrest and prevention of a crime; execution of civil process, writs, or court orders; and acts required or authorized by legislation.

5. Use of Force

Whether D is privileged to break and enter an enclosure or building, or to use force against P’s person, and the amount of such force permitted, depends upon the source and nature of the privilege being exercised.

G. Discipline

Parents. A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for the child’s proper control, training, or education.

Loco Parentis. The privilege extends to persons having responsibility for the custody, control, training, or education of the child, except so far as the parent has restricted their authority to do so.

Reasonableness. The reasonableness of the force or confinement depends upon: (1) whether D is a parent; (2) the age, sex, physical and mental condition of the child; (3) the nature of the offense and D’s apparent motive; (4) the influence of the child’s example; (5) its necessity and appropriateness to compel obedience to a proper command; and (6) whether disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Purpose. It must be administered in good faith, for a proper purpose, and without malice.



A. The Elements of the Negligence Cause of Action

“Negligence” is both (1) the name of a tort cause of action, and (2) the term given to conduct which falls below the standard which the law requires. The elements of a negligence cause of action (prima facie case) are:

  • A duty by D to act or refrain from acting;
  • A breach of that duty by D’s failure to conform his conduct to the required standard (i.e., “negligence”);
  • A sufficient causal connection between the negligent conduct and P’s injury; and
  • Actual (provable) harm—i.e., harm which the law says is measurable and compensable in money damages.

It is sometimes said that there is a fifth element, “proximate cause”—the harm must be within the scope of liability. Strictly speaking, this is not an element of the negligence cause of action but a liability limitation that cuts off recovery, similar to a duty limitation, even when the four traditional elements are established. In some cases, the court determines the scope of D’s liability as a matter of law. But in some cases, the jury determines whether D’s negligence was a “proximate cause” of P’s harm.

  1. Characteristics of Negligent Conduct

1. Definition

“Negligence” is conduct which falls below the standard established by law for the protection of others against unreasonable risks of harm.

2. Objective Test

The test for negligence is objective—not whether D intended to exercise due care, nor whether D did the best he could to be careful, but whether D’s conduct was that of a hypothetical “reasonably prudent person” placed in the same or similar circumstances.

3. Care Required

The standard is “reasonable care” (sometimes called “ordinary care” or “due care”) under the circumstances. The law does not require D to be perfect, but only to behave as a reasonably prudent person would behave. And D need only protect others against unreasonable risks of harm.

4. Attributes of the Reasonable Person

Knowledge, Experience and Perception. In judging D’s conduct, D will be charged with what he actually knew and observed, and also with those things which a reasonable person would have known and perceived. And if D has superior intelligence, memory perception, knowledge, or judgment, he will be held to that standard. But D’s deficiency in any of these attributes is ignored; he is still held to the standard of the reasonable (i.e. normal) person.

Knowledge Common to Community. The reasonable person knows those things which at that time are common knowledge in the community— commonly known qualities, habits, and characteristics of human beings, animals, and things.

Activities Requiring Skill. If D chooses to engage in an activity requiring learned skills or certain knowledge, his conduct is measured against the hypothetical person who is reasonably skilled and knowledgeable in that activity.

Physicians. In most jurisdictions, the standard of care of medical doctors (and sometimes other professionals) is conclusively established by the customary practice of reasonably well-qualified practitioners in that field.

Physicians or others who are certified specialists, or who hold themselves out as specialists, are held to the standards of that specialty.

Physical Characteristics. The “reasonable person” standard is subjective to the extent that if D has a physical deficiency or disability, his conduct is measured against that of a reasonably prudent person with his physical characteristics.

Mental Capacity. In judging D’s conduct, no allowance is made for deficiencies in D’s mental capacity to conform to the “reasonable person” standard of care. The fact that D is mentally deficient, voluntarily intoxicated, or even insane does not matter. His conduct is measured against the reasonably prudent sane, sober and normal person. A few courts apply a subjective standard to insane or mentally disabled persons.

Minors. Minors are an exception. If D is a minor, the test is what is reasonable conduct for a child of D’s age, intelligence, and experience under the circumstances. But this exception does not apply to minors engaging in “adult” activities requiring special skills and training, such as driving a car or flying an airplane. Below a certain age (in some states, arbitrarily fixed at seven), a young child is incapable of negligence because he or she lacks the mental maturity and experience to assess and respond to risks.

5. Conduct in Emergencies

The fact that D is confronted with a sudden emergency which requires rapid decision is a factor which may be taken into account in determining the reasonableness of his choice of action. However, D may have been negligent in (a) failing to anticipate the emergency or (b) creating the emergency; as to such negligence, this rule would not apply.

6. Sudden Incapacity

D’s conduct during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if D ought to have foreseen such an incapacity and was negligent in failing to take reasonable precautions to prevent its occurrence

7. Anticipating Conduct of Others

The reasonable person will regulate his conduct in light of what he can anticipate others will do.

8. Failure to Warn or Instruct

It may be negligent to fail to warn or instruct another so that he can take proper precautions for his own safety. Conversely, D’s exercise of reasonable care to give others an adequate warning of a danger does not necessarily prevent D’s conduct (the subject of the warning) from being negligent. If there is an unreasonable risk of harm inherent in D’s conduct, D must reduce that risk so far as reasonably possible; only then will an adequate warning of the remaining risk constitute “reasonable care.”

9. Other Types of Negligent Conduct

Any conduct may be negligent under the circumstances. Negligence may consist of an act or a failure to act, lack of competence, or lack of preparation, or a misrepresentation. It may be negligence to prevent protective action by another; to use an incompetent, defective or inappropriate instrumentality; or to permit another to use a thing or engage in an activity under D’s control so as to subject another to an unreasonable risk of harm.

  1. When Is a Risk “Unreasonable”?

Under the classic formulation, a risk is unreasonable when the foreseeable probability and gravity of the harm outweigh the burden to D of alternative conduct that would have prevented the harm. This is the classic “Hand” test.

Magnitude of Risk. The probability or likelihood that the harm will result, in conjunction with the gravity or seriousness of the potential harm, are placed on one side of the scale. The gravity of the harm includes both the extent of the damage and the relative societal value of the protected interest.

Burden of Alternative Conduct. The burden of reducing or eliminating the risk by alternative conduct is placed on the other side of the scale. Factors relevant in assessing this cost include: (1) the importance or social value of the activity or goal of which D’s conduct is a part; (2) the utility of the conduct as a means to that end; (3) the feasibility of alternative, safer conduct; (4) the relative cost of safer conduct; (5) the relative utility of safer conduct; and (6) the relative safety of alternative conduct.

11. Judge and Jury

Whether conduct was or was not negligent is a question of fact for the trier of fact.

  1. Sources of Standards of Care

1. Rules of Law

Appellate courts, reviewing fact situations and deciding that there was or was not sufficient evidence of negligence, often state that given conduct is or is not negligent. Such statements may be either (a) guidelines for the review of jury determinations of an issue of fact, or (b) fixed rules of law that given conduct is or is not negligent as a matter of law.

Some such rules of law may be desirable and lend stability to the law, so long as they are not immutable and admit exceptions. But better results are usually achieved if negligence is treated as a question of fact for the jury, and such “rules” are merely regarded as guidelines for the courts in determining that certain conduct in certain recurring situations so clearly is (or is not) negligent that the question may be taken from the jury.

2. Legislation

In General. Legislation (statutes, ordinances, regulations) often prescribe standards of conduct for the protection of others from harm. For tort law purposes, two types may be distinguished:

  • legislation which (a) expressly or (b) by necessary implication creates a civil remedy for damages for violation (e.g., F.E.L.A.,

F.S.A.A.); and

  • legislation which does not (limited to criminal penalties).

Courts routinely use legislation of the second type in negligence cases as evidence of, or as establishing, the standard of care which D was required to meet.

Legislative Purpose. Legislation is relevant on the standard of care in a negligence case only if the statute was intended, at least in part, to protect a class of persons which includes P against the particular hazard and kind of harm which resulted.

Licensing Statutes. Violation of a statute requiring a license to engage in a particular trade, profession or activity is generally not admissible to show that D was negligent on a particular occasion.

Effect of Violation

Majority Rule. Most courts hold that violation of a relevant statute is prima facie negligence or negligence per se. This means that if D introduces no evidence to excuse the violation, D’s negligence is conclusively established.

Minority View. In some jurisdictions, violation is merely evidence of negligence, which the jury can consider along with all other evidence in determining whether D was negligent. This is the rule in all jurisdictions when a minor violates a relevant statute.

Cause. A violation does not per se establish a sufficient causal relation between the violation and P’s injury.

Children. A minor’s violation of a statute is only evidence of negligence, not negligence per se.

Defenses. Contributory negligence and assumption of risk defenses (if otherwise available) apply, except in the case of statutes intended to protect a class of persons against their own inability to protect themselves.

Excused Violations

Certain Safety Statutes. A few statutes having a strong safety purpose (e.g., F.S.A.A., child labor laws, some factory and construction safety acts, pure food acts, some motor vehicle equipment and maintenance laws) permit no excused violations.

Other Statutes. As to most other statutes, courts will permit excuses for violations to be shown to rebut the per se or prima facie negligence. These include (a) physical circumstances beyond D’s control; (b) innocent ignorance of facts which make the statute applicable; (c) sudden emergencies not of D’s making; (d) situations in which it would be more dangerous to comply with the statute than to violate it; (e) violations that are reasonable in light of D’s childhood, physical disability, or physical incapacity; and (f) D used reasonable care in attempting to comply with the statute. In jurisdictions where the statute is merely evidence of negligence, any proof tending to excuse or make reasonable the violation would be relevant.

Compliance With Statute. D may ordinarily show compliance with a statute as evidence of his reasonable care, but such compliance is not conclusive since a reasonable person might have taken precautions greater than the statutory minimum.

  1. Proof of Negligence

1. Burden of Proof

P must introduce sufficient evidence to support a finding by a preponderance of the evidence on each element of his cause of action—duty, negligence, causation, damages. Whether a duty exists is usually an issue of law for the court; the trier of fact determines the other elements.

2. Presumptions

Each jurisdiction’s tort law has its own set of legal presumptions, which are codified rules of circumstantial evidence.

3. Experts and Opinion Evidence

In a large number of tort cases, expert testimony is necessary or desirable to furnish the jury facts beyond its common knowledge. Expert testimony may be required to establish the standard of care in professional negligence cases. Expert witnesses are permitted to testify to opinions when they will be helpful to the jury.

4. Res Ipsa Loquitur

Like presumptions, res ipsa loquitur (“the thing speaks for itself”) is basically a rule of circumstantial evidence.

Rule. If P can establish a prima facie res ipsa loquitur case, he need not prove by direct or other evidence the specific conduct of D which was negligent. If P makes a prima facie showing that (1) his injury was caused by an instrumentality or condition which was under D’s exclusive management or control at the relevant time(s), and (2) in the ordinary course of events, P’s harm would not have occurred unless D was then and there negligent, then the jury is instructed on res ipsa loquitur and may infer that D was negligent.

Control by D. D need not have been in control of the injury-causing instrumentality at the time of P’s injury. P need only establish that D’s negligence, if any, must have occurred while the instrumentality was in D’s control.

Multiple Defendants. The exclusive control requirement ordinarily precludes use of RIL against multiple defendants. However in a few cases, the courts have applied a variation of the doctrine and required each defendant to prove that he was not negligent. If there are multiple defendants but their relationship was such that they were jointly responsible for the instrumentality at the relevant time, or one would be vicariously liable for the conduct of the other, then the doctrine may be applied.

Inference of Negligence. P need not show that D’s negligence was the only possible explanation, only that the inference that it was D’s negligence outweighs the sum of the other possible causes.

P’s Conduct. At one time, P was required to prove that his injury was not due to any “voluntary act” by P, or that P’s own conduct was not a significant causative factor, or, most recently, that P was not contributorily negligent. However, with the adoption of comparative negligence, this requirement has been eliminated in most jurisdictions.

Procedural Effect. Once the court determines that P has established a prima facie res ipsa case, the issue becomes one for the jury to determine whether or not to draw the inference, taking into consideration D’s contrary evidence (if any). Both res ipsa and specific negligence theories may go to the jury, so long as the two are not inconsistent.

Products Liability Cases. There is an analogous circumstantial evidence rule in strict product liability cases. P need not prove the specific defect in the product, so long as the evidence tends to show that the product malfunctioned in such a way that the existence of a defect may be inferred and also tends to exclude possible causes other than a product defect.

5. Custom, Character

Custom and Usage. In determining whether conduct is negligent, the customary conduct of the community, industry, profession, or other relevant group in similar circumstances is relevant but not conclusive. Exception: In professional negligence cases involving physicians and certain other professionals, customary conduct usually is conclusive as to the standard of care.

Character. Evidence that D or P was or was not a careful person is not admissible to prove that he acted or failed to act carefully on the occasion in question.

6. Trade Rules and Standards

Rules and standards for the conduct of an activity promulgated by authoritative groups, if relevant and recognized as authoritative, are similar to custom and often admitted as some evidence of the standard of care.

7. D’s Own Rules and Standards

D’s own rules and standards are admissible but not conclusive as evidence of the appropriate standard of care.

  1. Degrees of Negligence

1. Degrees of Care

The duty of those who conduct certain dangerous activities is sometimes stated as greater than “ordinary” or “reasonable” care.

In some jurisdictions, common carriers (operators of airplanes, ships, buses, trains, taxicabs, and even elevators, escalators and amusement devices) are said to owe their passengers “the highest degree of care consistent with the mode of conveyance used and the practical operation of their business.” In some jurisdictions, persons responsible for certain dangerous instrumentalities (e.g., high-voltage electricity, explosives) must exercise a “high degree of care,” commensurate with the danger.

The trend is to reject such special duty rules, holding that “under the circumstances” achieves the same result without modifying the standard duty.

2. Degrees of Negligence

Occasionally, efforts have been made to subdivide the negligence concept into finer gradations—“slight,” “ordinary,” and “gross” negligence. These distinctions have proved unworkable and are rarely used.

  1. Reckless Conduct (“Wilful and Wanton Misconduct”)

1. Definition

Conduct is in “reckless disregard of the safety of another” (also called “wilful and wanton misconduct”) when D knows or has reason to know that (1) it creates an unreasonable risk of harm and (2) the risk is relatively high, either in degree or in the probability that harm will occur.

2. Distinguished From Negligent Conduct

Negligent conduct merely creates an unreasonable risk; no awareness of that risk is required. For conduct to be reckless, D must be conscious (or a reasonable person in D’s situation would have been conscious) that it creates a relatively high risk of harm to another.

3. Distinguished From Intentional Torts

Conduct is intentional when D either intends to bring about the consequences or knows that they are substantially certain to occur. Reckless conduct lacks that certainty of result.

4. When Required

Certain statutes and common law rules exempt D from liability for ordinary negligence, thereby requiring proof of reckless conduct for liability.

5. Effect

Defenses. In some jurisdictions, ordinary contributory negligence is not a defense or damage-reducing factor if D’s conduct is found to be reckless. However, in the majority of comparative negligence jurisdictions, P’s contributory negligence will reduce his recovery even against D’s reckless conduct. Assumption of the risk was formerly a defense to reckless conduct, but in many jurisdictions it is now merely a damage-reducing factor.

Punitive Damages. In most jurisdictions, reckless conduct will support an award of punitive damages.

  1. Duty Concepts and General Limitations

1. In General

In negligence law, D’s duty can best be analyzed as a general principle with exceptions and limitations, rather than as a collection of specific duties. In general, D has a duty to exercise reasonable care to avoid subjecting others (and their property) to unreasonable risks of physical harm. Specific limitations on that duty are sprinkled throughout the law of torts. The most common general duty limitations include the following.

2. Relationship Between P and D

Negligence law has traditionally held that D is not subject to liability to P unless D breached a duty owed to P and not to someone else. Cf. Palsgraf v. Long Island R. Co. (N.Y. 1928). “Negligence in the air, so to speak, will not do.” No simple formula exists for determining when this duty exists. The most important factors include (a) a pre-existing relationship between P and D, (b) foreseeability of harm, (c) the nexus between D and P’s injury, and (d) reliance by P upon D to protect him.

3. Nature and Scope of the Risk

Conduct may be negligent because it foreseeably threatens property damage, but it actually causes some unforeseen personal injury. Or conduct may be negligent because it foreseeably threatens one type of harm to P, but it actually causes another type of harm, as to which the risk was not unreasonable. Some courts will hold that there was no duty to protect against the harm which actually resulted. Other courts will reach the same result under proximate cause principles.

4. Interest Invaded

Certain types of interests are given less than full protection against negligent invasion, such as (1) pecuniary loss alone, unaccompanied by physical harm, (2) harm to the unborn, and (3) psychic trauma.

5. Misfeasance vs. Nonfeasance

Tort law traditionally distinguished between “misfeasance” (tortious conduct consisting of an affirmative act) and “nonfeasance” (inaction which results in, or allows, harm to P). As a general rule, D is not liable for harm to P resulting from his mere failure to intervene to aid or protect P unless there is some pre-existing relationship between P and D sufficient to create the duty, or unless D is responsible for P’s situation.

Rescue. Absent a pre-existing relationship between P and D or a duty to act arising from some other source, D has no duty to protect or aid P, who D realizes is in a position of danger.

First Aid. Absent a pre-existing relationship between P and D, or unless D was responsible for P’s injury, D has no duty to render aid or assistance to an injured or otherwise needy P.

Relationships Creating Duty. Pre-existing relationships which will support a duty to aid or protect another include carrier-passenger, innkeeper-guest, landowner-lawful entrant, employer-employee, jailer-prisoner, school-student, parent-child, husband-wife, store-customer, and host-guest. A duty has even been found as to friends engaged in a joint social outing.

Responsible for Peril or Injury. The duty arises when D is responsible for P’s injury or position of peril, whether or not D was negligent.

Aid to Helpless. One who undertakes to render aid or to protect P, who is helpless to adequately aid or protect himself, must do so with reasonable care. And, having undertaken this duty, he may not abandon P and leave him worse off. This rule has led to “Good Samaritan” statutes in many states which relieve physicians (and others) who render emergency medical aid from all liability for negligence.

Services. When D (gratuitously or otherwise) undertakes to render services which he knows or should know are for P’s protection, D must perform those services with reasonable care, at least if (a) his failure to do so increases the risk of harm to P or (b) P’s injury results from his reliance on D.

Duty Arising Ex Post Facto. If D does an act, not tortious at the time, and later discovers that his act creates an unreasonable risk of harm to P, D must exercise reasonable care to prevent the risk from taking effect.

Statutory Duty of Protection. When a statute requires one to act for the protection of another, the court may (or may not) use the statute as a basis for an affirmative duty and its scope. This is different from using a statute to establish the standard of care when a duty already exists, or statutes that expressly or impliedly create a cause of action.

Duty to Control Conduct of Another. Certain relationships carry with them a duty by D, the dominant or custodial member, to use reasonable care to regulate the conduct of (1) the person within his custody or control so as to protect third persons or (2) third persons so as to protect the person in his custody or care.

Parent-Child. A parent must exercise reasonable care to prevent tortious conduct by his child, provided the parent knows or has reason to know he has the ability, and knows or should know of the necessity and opportunity to exercise such control.

Master-Servant. A master has a similar duty with respect to a servant; this even extends to one acting outside the scope of his employment, if the servant is on the master’s premises or is using his chattel.

Person on D’s Land. D has a similar duty with respect to a person using his land or his chattel in his presence and with his permission.

Custodian of Dangerous Person. If D has custody of a person D knows to have dangerous propensities, D must exercise reasonable care to prevent that person from doing harm.

Duty to Protect Person in Custody. If D has custody of P under circumstances such that (a) P is deprived of his normal power of self-protection or (b) P must associate with persons likely to harm him, then D has a duty to exercise reasonable care to prevent tortious conduct against P.

  1. Duty: Tort and Contract

1. Parties to the Contract

One possible source of D’s duty to P is a contract between them under which D agrees to perform certain services. If D breaches that contract and as a result P sustains physical or other harm, special rules apply to determine whether that breach may give rise to tort liability.

General Rule: Misfeasance vs. Nonfeasance. Where D’s duty to act arises because of a contractual relation between D and P, D is not liable in tort for harm caused by his breach of that contract where the breach consists merely of his failure to commence performance at all. But once having begun to perform, he will be liable for his tortious misperformance, whether consisting of acts or omissions to act.

Exceptions: Liability for Nonfeasance

Public Callings. Those engaged in the public or “common” callings— common carriers, innkeepers, public warehousemen, public utilities, and public officers—are subject to tort liability for nonperformance.

Other Relationships. Other relationships, which may or may not be based on contract, impose a duty of affirmative action.

Fraud. A promise made without any intent to perform it may be fraud for which a tort action in deceit will lie.

2. Third Persons Not Parties to the Contract

Common Law Rule. The general common law rule was that P, not a party to a contract between D and another, had no cause of action in tort for harm sustained as a result of D’s misperformance or nonperformance. P was not in “privity of contract” with D.

Exceptions: Nonfeasance. In the case of nonfeasance, various exceptions to the privity rule have developed, such as (1) the failure of a telegraph company to transmit a telegram; (2) the nonperformance by an agent of his contractual duty to supervise property or persons over which he has been given control, or to take certain precautions for the safety of third persons; (3) nonperformance of a contract to maintain, inspect, or repair an instrumentality which foreseeably creates a substantial risk of harm to third persons; (4) nonperformance by a landlord of his contract to repair the premises; and (5) in some cases, where D undertakes to render services to reduce the risk of harm to a third person if (a) the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking, (b) D has undertaken to perform a duty owed by the other to the third person, or (c) the person to whom the services are rendered, the third party, or another relies on D’s exercising reasonable care in the undertaking.

Exceptions: Misfeasance. Where D’s negligence consists of misperformance after having begun to perform, the privity rule is now obsolete, and the overwhelming majority of courts will subject D to liability to P.


  1. Contributory and Comparative Negligence

1. Rule

Contributory negligence is conduct by P which creates an unreasonable risk of harm to P, and which combines with D’s negligence to cause P’s injury.

  1. Burden of Proof

Contributory negligence is an affirmative defense.

3. Applicable Rules

In general, contributory negligence uses the same rules and tests as negligence.

4. Effect of Plaintiff’s Contributory Fault

Complete Bar vs. Mitigation of Damages. Contributory negligence was once a complete defense that totally barred P’s recovery. Now, in most jurisdictions it merely reduces his damages pro tanto, although it can still be a complete bar.

Comparative Negligence. All but four states and the District of Columbia have finally accepted the doctrine of comparative negligence. Under this rule, P’s contributory negligence is not a complete bar to his recovery. Instead, P’s damages are calculated and then reduced by the proportion which P’s fault bears to the total causative fault of P’s harm.

Types of Comparative Negligence. Under the pure form (minority rule), P may recover a portion of his damages no matter how great his negligence in comparison to that of D. Under the modified form (most jurisdictions), P recovers nothing if his negligence was “as great as” (50%) or “greater than” (51%) that of the defendant (or defendants collectively).

Factors for Assigning Shares. In deciding how to assign percentage shares of responsibility, the trier of fact should consider (1) the duty owed by each person, (2) the extent to which each person’s conduct deviated from that duty, and (3) the extent to which the tortious conduct of each person caused the injury in question.

Intentional or Reckless Conduct. Traditionally, ordinary contributory negligence was not a defense to an intentional tort or to reckless conduct (but contributory reckless conduct was a defense to the latter). In most comparative negligence jurisdictions, P’s contributory negligence will reduce his recovery even though D’s conduct was reckless, but not if it was intentional.

Strict Liability. Prior to the adoption of comparative negligence, mere contributory negligence was not a defense to a strict liability action. Some comparative negligence jurisdictions permit P’s ordinary contributory negligence to reduce his damages; others reduce his damages only for assumption of the risk.

Safety Statutes. Contributory negligence is not a defense to actions founded upon certain types of safety statutes intended to protect a class of persons from dangers against which they are incapable of protecting themselves. Some statutes expressly prohibit this defense.

Serious Misconduct. In some jurisdictions, if P’s contributory fault was seriously unlawful or immoral conduct, he will be barred from recovery altogether.

5. Causal Relation

The same rules of causation apply as in the case of negligent conduct. And the defense is not available unless P’s harm results from the risk which made P’s conduct negligent.

6. Imputed Contributory Negligence

General Rule. With three exceptions, the negligence of a third person will not be imputed to P so as to reduce or bar P’s recovery for injuries caused by D’s negligence.

Exception: Master–Servant. A master’s recovery against a negligent D is reduced (or barred) by the negligence of his servant acting within the scope of his employment.

Exception: Joint Enterprise. P, a member of a joint enterprise, is injured by the concurrent negligence of D, a third person outside the enterprise, and M, another member of the enterprise. P’s recovery against D is reduced by M’s negligence.

Exception: Consequential Damages. Where P has a cause of action based upon personal injuries to another (A), P’s recovery is reduced by A’s contributory negligence.

7. P’s Negligent Failure to Exercise Control

In General. If P has a duty to control the conduct of A and negligently fails to do so, A’s contributory negligence (combined with that of P) reduces or bars P’s recovery against D whose negligence was also a cause of P’s injury.

Parent. A parent’s (P’s) recovery from D for injuries to P’s child caused by D’s negligence may be reduced or barred by P’s negligence in protecting or supervising his child.

B. Last Clear Chance

The doctrine of “last clear chance” is now primarily of historical interest; it survives in a dwindling minority of jurisdictions.

The doctrine applies only when D’s negligence is later in time than P’s contributory negligence. In essence, P (or P’s property) is in a zone of danger from which he cannot escape in time, leaving D with the last opportunity to do something to prevent the harm which otherwise will occur. If D then negligently fails to act to prevent the harm, he is not permitted to use P’s prior negligence as a defense.

  1. Assumption of Risk

1. Rule

Under the traditional common law rule, if P voluntarily assumes a risk of harm arising from the negligent or reckless conduct of D, P cannot recover for such harm. Assumption of the risk is an affirmative defense.

Until recently, most (but not all) jurisdictions recognized this defense, some by a different name. A few have limited it to (1) master-servant and (2) express assumption cases. Some courts analyze P’s assumption of risk as affecting D’s duty, e.g., negating D’s duty to exercise care for P’s safety.

2. Meanings of Term

The term “assumption of risk” can mean different things, some of which are not truly defenses to negligent conduct. The term is used to describe several different situations:

Express. P expressly agrees in advance (usually in a written contract) to relieve D of D’s duty to exercise care for P’s safety with respect to a known or possible risk.

Inherent Hazards Not Arising From Negligence. P chooses to engage in an activity which has certain inherent and commonly accepted risks, even though the others involved exercise proper care. As to these risks, there is no negligence, and therefore the doctrine does not properly apply. Some courts call this “primary” assumption of risk.

Risk of Future Negligence. P voluntarily enters into a relationship with D knowing that there is a risk that D will act negligently. Here, the true basis of liability is P’s unreasonable conduct in entering into the relationship (i.e., contributory negligence).

Assumption of Existing Negligently–Created Risk. P, aware of a risk created by the negligence of D, proceeds or continues voluntarily to encounter it. This is true implied assumption of risk.

3. Contributory Negligence Distinguished

In theory, implied assumption of the risk is P’s implied voluntary consent to encounter a known danger created by D’s negligence. Contributory negligence is unreasonable conduct. The former is a subjective test; the test for the latter is objective.

4. Express Assumption of Risk

Rule. If P, by contract or otherwise, expressly agrees to accept a risk of harm arising from D’s negligent conduct, P cannot recover for such harm, unless the agreement is invalid as contrary to public policy.

Construction. Such agreements are strictly construed against D, and are not enforceable if P reasonably was ignorant of that term. They are unenforceable as to intentional torts, and some courts will not enforce them as to reckless conduct.

Public Policy. Such agreements are unenforceable when contrary to public policy. In general, they will not be enforced in favor of employers, those charged with a duty of public service, and those having a significantly superior bargaining position as compared to P.

5. Implied Assumption of Risk

Rule. If P knows, appreciates, and understands the risk of harm created by D’s negligent or reckless conduct, and nevertheless voluntarily subjects himself to the risk by conduct which impliedly manifests his consent to accept the risk, then he is subject to the assumption of risk defense. The effect of the defense varies.

Elements: Manifestation of Consent. The essence of the defense is consent to accept the risk, and therefore P’s conduct must impliedly manifest that consent.

Elements: Knowledge and Appreciation of Risk. The consent must be an informed one, and therefore D must show that P knew of the existence of the risk, and understood and appreciated its unreasonable character.

Elements: Voluntariness. P’s assumption of the risk must be voluntary. However, P’s conduct in proceeding into the zone of danger, even reluctantly or under protest, ordinarily may be deemed voluntary. Even if P has no reasonable alternative but to encounter the risk, his doing so is voluntary unless D’s tortious conduct is responsible for P’s predicament and other conditions are met. Additionally, many courts have held that mere economic duress does not make encountering the risk involuntary.

Violation of Statute. P’s assumption of risk bars or reduces his recovery based on D’s violation of a statute, unless this result would defeat a policy of the statute. Some statutory torts expressly exclude the defense.

Modern Status of the Defense. There is a strong trend to abolish the defense of implied assumption of risk as a separate defense in negligence cases on the ground that it overlaps completely with the doctrine of contributory negligence. In particular, jurisdictions adopting comparative negligence frequently merge the defenses of contributory negligence and assumption of risk under a general “comparative fault” concept.

Participation in Sporting Events. In many jurisdictions, those who participate in professional or amateur sporting events assume the risk of injuries resulting from other players’ misconduct, even when violations of rules of the game having a safety purpose, unless the violation was more than carelessness incident to the play of the game. But D may be liable if he intentionally or recklessly injures P. This may also be analyzed as a limited duty rule.

  1. Statutes of Limitations and Repose

1. Statutes of Limitations

In General. A statute of limitations is a statutory time period within which P must file his lawsuit.

Classification. Since there are different time periods for different causes of action, the courts must classify actions for purposes of determining which time period applies. P’s characterization in his complaint is not controlling.

Procedural Effect. A statute of limitations is usually an affirmative defense that is waived if not asserted.

Commencement of Running: General Rule. The statute of limitations begins to run on the date the cause of action “accrues,” usually the date on which the injury occurs. In wrongful death cases, this is the date of death.

Concealment. D’s fraudulent concealment or nondisclosure of the existence of the cause of action from P tolls the running of the statute.

Continuing Duty or Negligence. In some contexts, the courts will extend the available time by finding a continuing duty to disclose or continuing negligence or other tort. In medical negligence cases, some courts hold that the statute does not begin to run until P’s course of treatment has been concluded. If D’s conduct constitutes a continuing nuisance, the statute may not start to run until D’s conduct in creating the nuisance ceases, or it may not start to run as long as the harm continues.

Discovery Rule. Most jurisdictions have adopted a “discovery” rule whereby tort statutes of limitations do not begin to run until P discovers (or by the exercise of reasonable care should discover) that (a) he is injured and (b) the injury is the result of someone’s tortious conduct.

Minors and Others Under Disability. A statute of limitations normally does not run against a minor or person under some other legal disability.

Death Cases. In wrongful death cases, the statute begins to run on the date of death, even though the fatal injury occurred earlier.

Latent Potential Harm. Where P may have been exposed to a toxic material resulting in no present symptoms or minor symptoms but a measurable risk that P may contract a serious or fatal illness at some uncertain time in the future, some courts will allow recovery now for the present symptoms or medical monitoring and either (1) damages for the potential future harm times the probability of its occurrence or (2) allow a later suit if and when the potential future harm actually occurs.

Repressed Childhood Sexual Abuse. Some courts have permitted the statute of limitations to be tolled during the time when P has repressed her memory of childhood sexual abuse (assuming the repression began before the applicable statute expired). Others have rejected the defense, holding that whatever “repression” is, it does not toll the statute of limitations. Some legislatures have adopted extended statute of limitations in such cases.

Estoppel. If D actively induces P not to take timely legal action on a claim, and P reasonably relies on D’s inducement, D may be estopped to assert the statute of limitations defense.

2. Statutes of Repose

Statutes of repose are special limitation periods which supplement and override statutes of limitations, the discovery rule, and other similar rules and exceptions. They set an outer limit beyond which D can no longer be held responsible for a completed activity, irrespective of whether an injury has occurred.

3. Notice of Claim Statutes

In suits against state or local governments, statutes sometimes require P to give notice to the potential D within a certain time period.

  1. Immunities

1. Government and Its Employees: Sovereign Immunity

Prior Common Law. At one time, all levels of government were entirely immune from tort liability.

U.S.: Federal Tort Claims Act. The United States has waived its tort immunity for damages “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A. § 1346(b).

FTCA Exceptions. In addition to exceptions for specified activities, there are two important general exceptions:

Specified Torts. The U.S. is not liable for (1) assault, battery, false imprisonment, false arrest, or malicious prosecution, except in the case of investigative or law enforcement officers; or (2) abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Nor is it subject to strict tort liability in any form.

Discretionary Acts. The U.S. is not liable for acts done with due care in the execution of a statute or regulation (even though invalid), or for “an act or omission . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . , whether or not the discretion be abused.”

Current Rule: State and Local Government. Most states have largely abolished state and local governmental sovereign immunity. However, there is limited liability for certain governmental functions. Judicial and legislative functions and executive policy decisions remain immune.

Governmental Officers and Employees. Governmental officers and employees are immune when exercising a judicial or legislative function. The highest executive officers are absolutely immune except when acting clearly beyond the bounds of their authority. Lower level executive and administrative employees have a qualified immunity for the good faith exercise of a discretionary function, but are liable for their tortious ministerial acts.

2. Charities

The common law tort immunity of charitable, educational, religious, and benevolent organizations is no more, except in a few jurisdictions that retain vestiges. However, legislation is recreating immunities for particular charitable activities or for individuals engaged in certain charitable activities.

3. Spouses, Parents and Children

Husband and Wife. At one time, the general common law rule was that husband and wife were each immune from tort liability to the other spouse for torts committed during coverture. The majority of states have now abolished this immunity; most of the rest recognize exceptions.

Parent and Child. At common law, a parent and his unemancipated minor child were each immune from suit by the other for a personal tort, whether intentional or negligent. Some states have largely abolished this immunity. The remainder increasingly recognize exceptions, such as for (a) intentional or reckless conduct, (b) torts occurring during D’s business activity, (c) breach of a duty external to the family relationship, and (d) suits after the parent-minor child relationship has ended, as by emancipation of the child or the death of either party. Some states have abolished the immunity in certain classes of cases (e.g., auto). Among the states that have abolished the immunity, some hold that the parent cannot be held liable for negligent supervision, or the exercise of parental authority, or where the negligent act involves the exercise of parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

4. Infants and Incompetents

Infants. Assuming that the requisite mental state (if any) can be proved, an infant or minor is not ordinarily immune from tort liability.

Incompetents. One with deficient mental capacity is not for that reason alone immune from tort liability. Particularly in torts involving physical harm, the incompetent D is held to the same standard as a normal person. However, D’s mental condition may sometimes be relevant in determining whether any tort has been committed.

F. Preemption

Under the supremacy clause of the U.S. Constitution, when a federal statute or regulations expressly or impliedly preempt a particular field, state tort law either cannot regulate the field at all or cannot impose a higher standard than the applicable federal law. Whether (and the extent to which) a federal statute or regulation is preemptive is a question of statutory interpretation for the court.



A. Overview of Causation Issues

Causation problems may be analyzed in two categories:

  1. Proximate cause, also called “legal cause” or scope of liability. Some courts and writers use these terms to encompass all causal relation issues. Others distinguish between (a) proximate or legal cause and (b) cause in fact. Many now categorize proximate cause issues under the term “scope of liability,” completely separating proximate cause issues from the issue of factual causation. This is the preferred approach.
  2. Cause in fact exists when the “cause-and-effect” chain of events leading to P’s injury includes D’s tortious conduct.

Proximate (legal) cause (scope of liability) concepts may be used to cut off D’s liability when the court decides that it would be unjust under the circumstances, despite the fact that D’s tortious conduct was a cause in fact of P’s injury. Courts sometimes treat the same or similar scope of liability problems as duty issues or fault issues.

  1. Cause In Fact

1. General Rule

Cause in fact is a question of fact, requiring that the injury would not have occurred “but for” D’s conduct (the ‘’sine qua non” rule).

Earlier, many courts added a second element: that D’s tortious conduct was a “substantial factor” (or sometimes “a material element [and] [or] a substantial factor”) in bringing about P’s injury. Increasingly, this factor has been discredited, and many courts now reject the ‘’substantial factor” element as part of the definition of factual causation, while retaining it as a scope of liability issue.

2. Proof

Most cause in fact problems are nothing more than fact questions involving the adequacy of P’s circumstantial evidence linking P’s injury and D’s tortious conduct.

3. Multiple Causes

Concurrent Tortfeasors, Indivisible Injury. If the tortious conduct of Dl and D2 concur and both are causes in fact of P’s injury, either or both are subject to liability in full for all of P’s damages. It does not matter that Dl and D2 did not act in concert, or that neither’s conduct by itself would have caused P’s injury.

Concurrent Tortfeasors, Divisible Injury

General Rule. If D1 and D2 each cause separate parts of P’s harm, each will be liable only for the part he caused if it is even theoretically possible to determine who caused which part.

Exception: Concert of Action. Both D1 and D2 are liable for all of P’s damages, even though divisible, if they were acting in concert or engaged in a joint enterprise.

Exception: Risk of Further Injury. If D’s tortious conduct injures P and also foreseeably exposes P to the risk of further injury by another, D is liable both for the injury he caused and also for such further injury.

Burden of Proof. Traditionally, the burden was on P to prove which part of his injury was attributable to which defendant, at the risk of failing to recover against any. Today, in some circumstances defendants may have the burden of proof on apportionment.

Concurrent Independent Tortfeasors, One Cause. Suppose the tortious conduct of D1 and D2 (acting independently) occurs so that either D1 or D2 (but not both) was the cause in fact of P’s injury, but P cannot prove which one. Traditionally, P would lose. Today, each defendant may be required to prove that he was not the cause.

Enterprise Liability. Courts may impose “enterprise liability” when: (1) the injury-causing product was manufactured by one of a small number of defendants in an industry; (2) the defendants had joint knowledge of the risks in inherent in the product and possessed a joint capacity to reduce those risks; (3) each defendant failed to take steps to reduce this risk, delegating this responsibility to a trade association; and (4) most, if not all, of the manufacturers are joined as defendants. Liability is joint and several. A manufacturer can escape liability only by proving that its product could not have been the one that injured the plaintiff.

Market Share Liability. A few courts permit “market share” liability when a person was injured by a product (such as a drug) that was produced and sold by multiple manufacturers, but the plaintiff cannot now identify the particular manufacturer that sold the product that caused her injury. Manufacturers representing a substantial share of the relevant market at the time the product was used or consumed can be sued jointly and held severally liable for a proportional part of the plaintiff’s damages. The operative details vary among jurisdictions, but in general the plaintiff must join enough manufacturers to encompass the great majority of the relevant market, and prove their relevant market shares. A manufacturer can then escape liability by proving that its product could not have been the one that injured the plaintiff.

Liability for Reduced Chance. Some courts will permit recovery for tortious conduct that did not cause P’s harm but merely reduced P’s chances of a favorable outcome. Some deny all recovery unless the victim’s chances were initially over 50%; some allow damages based on the jury’s determination that the defendant’s negligence was a “substantial factor” in hastening or precipitating the adverse result; and some allow damages based on the percentage difference attributable to the defendant’s negligence times the plaintiff’s total damages.

  1. Scope of Liability (Proximate Cause)

1. General Principle

Rules of proximate or legal cause limit D’s liability to persons and consequences that bear some reasonable relationship to D’s tortious conduct. Whether and how proximate cause rules shall be applied is a question of law for the court. However, in some instances the jury is allowed to decide whether the scope of liability in a particular case extends to P’s harm.

Proximate cause rules can be grouped into two categories: (1) unforeseeable or remote or indirect consequences; and (2) intervening causes.

2. Unforeseeable Consequences

Majority View: The Risk Principle. Under the majority view, sometimes called the “risk principle” or the “foreseeable-risk rule,” D’s liability is limited (1) to those consequences, the foreseeability of which made D’s conduct tortious in the first place, and (2) to persons within that foreseeable zone of danger.

Minority View: The Direct Consequences Rule. Under the minority view, D is subject to liability for consequences which are a direct result of his tortious conduct, whether or not foreseeable. The result is direct if it follows in an unbroken natural sequence from the effect of D’s act upon conditions existing and forces already in operation at the time, without the intervention of any external forces which were not then in active operation. The Restatement (Second) of Torts § 435 adopted a modified direct consequences rule. D is subject to liability if he could have foreseen any harm from his tortious conduct, even though the manner or extent of the harm was unforeseeable, unless the court finds it “highly extraordinary” that the conduct should have brought about the harm.

The Duty–Risk Rule. Some have proposed that all questions of scope of liability or “proximate cause” should be treated as duty issues, to be decided by the court based on a variety of factors: social policy, fairness, expediency, etc. This approach, known as the “duty-risk rule,” has won few adherents in principle, but it is not uncommon for courts to rule against plaintiffs on the ground that D had no “duty” to protect P against a particular risk or that D owed no “duty” to P. See, e.g., Judge Cardozo’s opinion in the Palsgraf case.

Current Status of the Risk Principle. Although most courts follow Cardozo’s approach in the Palsgraf case and limit D’s liability to the foreseeable risks which made his conduct negligent, many tend to allow juries to determine when the harm realized is too remote from D’s negligence. They tend to see all causation issues as for the jury, and questions as to whether the risk realized is too disproportionate or different from the risk that made D’s conduct tortious as questions of duty for the court.

Elasticity of “Foreseeable.” Under the majority view, courts can expand or contract the bounds of D’s liability by expansive or constrictive rulings on the foreseeability question.

Elasticity of “Hazard.” The bounds of D’s liability may also be expanded or contracted depending on how the court defines the hazard or risk that makes D’s conduct tortious.

Rescuers. The intervention of would-be rescuers is usually deemed foreseeable.

Physical Consequences. Under the so-called “’thin-skulled” or “eggshell” plaintiff rule, D is liable for the full consequences of P’s injury even though, due to P’s peculiar susceptibility (of which D was unaware), those consequences were more severe than they would have been in a normal person.

Intentional Torts; Strict Liability. Courts tend to expand the limits of foreseeability when D’s conduct amounts to an intentional tort, and conversely confine liability to foreseeable consequences when liability is strict.

3. Intervening Cause

Definition. An intervening cause is conduct by some third person (or an event which occurs) after D’s tortious conduct, and operates with or upon D’s conduct to produce P’s injury.

General Rule. If (1) an intervening cause was foreseeable, or (2) the intervening cause was not foreseeable but the consequences were of the type which D could foresee, the intervening cause will not operate to relieve D of liability. But if both the intervening cause and the resulting consequences were not foreseeable, it is called a superseding cause and D’s tortious conduct is not deemed a proximate cause of P’s injury.

Types of Intervening Causes. An intervening cause may consist of either human conduct or any other natural force or event.

Foreseeable Intervening Causes. Foreseeable intervening causes may include (1) foreseeable weather conditions; (2) negligence by third persons; (3) criminal conduct or intentional torts by third persons, provided D’s conduct exposes P to a greater-than-normal risk of such conduct, or if the exposure to such risks is what makes D’s conduct tortious; (4) P’s self-inflicted harm while insane; (5) acts by rescuers; (6) efforts by P to mitigate the effects of his injury; and (7) disease or subsequent injuries resulting from the impairment of P’s health caused by the original injury.

Foreseeable Consequences. If the result is foreseeably within the risk created by D’s tortious conduct, then even an unforeseeable intervening cause does not supersede D’s liability, unless (1) the unforeseeable intervening cause is the criminal act of a third person, or (2) a third person, who has a duty to act, discovers the danger and has sufficient time and opportunity to prevent the harm but fails to do so.

4. Substantial Factor

The “substantial factor” requirement has been eliminated as part of the definition of cause in fact, but it may be relevant as a scope of liability issue. When D’s negligent conduct makes only a trivial contribution to multiple factual causes of P’s harm, the harm is not within the scope of D’s liability. However, this rule does not apply if the trivial contributing cause is necessary for the outcome; it only applies when the outcome is overdetermined.




Criminal Law



  1. “Criminal” versus “Civil”
    1. The Essence of the Criminal Law

What distinguishes a criminal from a civil sanction and all that distinguishes it, is the judgment of community condemnation that accompanies and justifies its imposition. A “crime” is (or, at least should be) limited to conduct that, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.

  1. Sources of the Criminal Law
    1. Common Law

“Common law” is judge-made law. For the most part, British common law became American common law.

  1. Statutes

Today, all criminal lawyers in this country turn first to a book—often characterized as a “penal code”—that contains legislatively-drafted definitions of crimes, defenses to crimes, and other relevant doctrines of criminal law, which apply in that lawyer’s jurisdiction.

  1. Model Penal Code

The Model Penal Code (typically abbreviated as “MPC”) is a code created in the 1950s and adopted in 1962 by the American Law Institute, a prestigious organization composed of top judges, scholars, and lawyers. Portions of the MPC have become law in many states.

  1. Limits on the Criminal Law

State and federal legislation is subject to the strictures of the United States Constitution (and, with state laws, the constitution of the relevant state).

Some of these strictures are discussed throughout this Outline.

  1. Burden of Proof: Basics

A basic American principle of criminal law is that a defendant is presumed innocent. The Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution require that, to convict a defendant, the government must persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged.

  1. Judge versus Jury
    1. Constitutional Law

The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Despite the phrase “in all criminal prosecutions,” the Supreme Court has generally limited the right to a jury trial to prosecutions for crimes for which the maximum potential punishment exceeds incarceration of six months.

  1. Jury Nullification

Jury nullification occurs when the jury decides that the prosecution has proven its case beyond a reasonable doubt, but for reasons of conscience it disregards the facts and/or the law and acquits the defendant. Jurors have the power to nullify, but not the right to do so. Therefore, a defendant is not entitled to have the jury instructed that it may nullify the law.


  1. Theories of Punishment
  1. Different Theories

Two broad theories of punishment exist: utilitarianism and retribution.

  1. Principles of Utilitarianism
    1. Augmenting Happiness

Utilitarianism holds that the general object of all laws is to augment the total happiness of the community by excluding, as much as possible, everything that subtracts from that happiness, i.e., everything that causes “mischief” (pain).

  1. Role of Punishment

Both crime and punishment are evils because they both result in pain to individuals and to society as a whole. Therefore, the pain of punishment is undesirable unless its infliction is likely to prevent a greater amount of pain in the form of future crime.

  1. Forms of Utilitarianism
  2. General Deterrence

A person is punished in order to send a message to others (the general society or, at least, persons who might be contemplating criminal conduct) that crime does not pay.

  1. Specific Deterrence

D is punished in order to deter D from future criminal activity. This is done in either of two ways: by incapacitation (incarceration of D prevents her from committing additional crimes in the general community for the duration of her sentence); and/or by intimidation (D’s punishment serves as a painful reminder, so that upon release D will be deterred from future criminal conduct).

  • Rehabilitation

Advocates of this form of utilitarianism believe that the criminal law can prevent future crime by reforming an individual, by providing her with employment skills, psychological aid, etc., so that she will not want or need to commit offenses in the future.

  1. Principles of Retribution
  1. Just Deserts

Punishment of a wrongdoer is justified as a deserved response to wrongdoing. Retributivists punish because of the wrongdoing—the criminal gets his just deserts—regardless of whether such punishment will deter future crime.

  1. Rationale

Wrongdoing creates a moral disequilibrium in society. The wrongdoer obtains the benefits of the law (namely, that other people have respected his rights), but he does not accept the law’s burdens (respecting others’ rights). Proportional punishment of the wrongdoer— “paying his debt”—brings him back into moral equilibrium. Another justification is that both crime and punishment are forms of communication: one who commits a crime sends an implicit message to the victim that the wrongdoer’s rights are more important than others’ rights; punishment is a symbolic way of showing the criminal—and reaffirming for victims—that this message was wrong. Punishment proportional to the offense defeats the offender: it brings him down to his proper place in relation to others.

  1. Proportionality of Punishment
    1. General Principle

A general principle of criminal law is that punishment should be proportional to the offense committed.

  1. Utilitarian Meaning

Punishment is proportional if it involves the infliction of no more pain than necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime.

  1. Retributive Meaning

Punishment should be proportional to the harm caused on the present occasion, taking into consideration the actor’s degree of culpability for causing the harm.

  1. Constitutional Law

The Eighth Amendment Cruel and Unusual Punishment Clause prohibits grossly disproportional punishment.

  1. Death Penalty Cases

The Supreme Court has held that death is grossly disproportional punishment for the crime of rape, because the latter offense does not involve the taking of human life.

  1. Imprisonment Cases

According to the Supreme Court’s most recent pronouncement, there is only a very “narrow proportionality principle” outside the context of the death penalty. The legislature (not the judiciary) has primary authority in setting punishments. No non-capital incarcerative punishment will be declared unconstitutional unless there are objective grounds—not simply a judge’s own subjective views of the propriety of the punishment—for determining that the punishment is grossly disproportionate to the crime.

  1. Legality
    1. Requirement of Previously Defined Conduct
      1. General Principle

The so-called “principle of legality” is that there can be no crime without (pre-existent) law, no punishment without (pre-existent) law.

  1. Constitutional Law

The principle of legality not only is a common law doctrine, but has deep constitutional roots. Legislatures are prohibited by the Ex Post Facto Clause of the United States Constitution from enacting laws that would punish conduct that was lawful at the time of its commission, or that increases the punishment for an act committed before the law took effect. In turn, courts are prohibited from enlarging the scope of criminal statutes by the Due Process Clause.

  1. Fair Notice

A corollary of the legality principle is that a person may not be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can understand its meaning. This is a fundamental common law concept, with constitutional roots as well in the Due Process Clause.

  1. Nondiscriminatory Enforcement

Another corollary of the legality principle is that a criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement by law enforcement officers, thereby unduly expanding government power.

  1. Burden of Proof
    1. Burden of Production

This burden relates to the question of which party—the defendant or the government—has the obligation to first introduce evidence on a given issue. The party with this obligation, who fails to satisfy this burden, loses on the issue. In general, the government has the burden of production regarding elements of a crime; the defendant carries the burden as to affirmative defenses.

  1. Burden of Persuasion

Once the burden of production has been satisfied, the next question becomes: who has the burden of persuading the factfinder on the particular issue? The party with the burden of production need not have the burden of persuasion.

  1. Degree of Burden
    1. Elements of a Crime

The Due Process Clause of the Constitution requires that the government carry the burden of persuasion, beyond a reasonable doubt, as to “every fact necessary to constitute the crime charged.” The Court has limited the word “fact”—and, thus, the prosecutor’s constitutional obligation to carry the burden of production beyond a reasonable doubt—to elements of an offense, and not to defenses and mitigating factors.

  1. Defenses to Crimes

A legislature is free to place the burden of persuasion regarding a criminal law defense on either party—the defendant or government—and to set the burden very high (proof beyond a reasonable doubt), somewhat high (clear and convincing evidence) or low (proof by preponderance of the evidence).



  1. Definition

The “actus reus” of an offense is the physical, or external, component of a crime what society does not want to occur.

  1. Two Elements

The actus reus of a crime consists of two components, both of which must be proved by the prosecutor beyond a reasonable doubt.

  1. Voluntary Act or Legal Omission

Generally speaking, there can be no crime in the absence of conduct. But, only a certain type of conduct qualifies, namely, conduct that includes a voluntary act. In rare circumstances, a person may be prosecuted because of what he or she did not do—an absence of conduct. An “omission” substitutes for a voluntary act when the defendant has a legal duty to act.

  1. Social Harm

People are not punished for conduct (or omissions), but rather for conduct (or omissions) that result in “social harm.”


  1. General Rule

A person is not ordinarily guilty of a criminal offense unless his conduct includes a voluntary act.

  1. Common Law Definition of Voluntary Act
    • “voluntary act” is a willed muscular contraction or bodily movement by the actor. An act is “willed” if the bodily movement was controlled by the mind of the actor.
  2. Model Penal Code

The MPC does not define “voluntary act.” It provides examples of involuntary actions: a reflex or convulsion; bodily movement while unconscious or asleep; conduct during hypnosis or as a result of hypnotic suggestion; and/or “a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”

  1. Constitutional Law

The Supreme Court has never expressly held that punishment of an involuntary actor is unconstitutional. However, it has invalidated statutes that criminalize a “status” or “condition” (such as being a drug addict), rather than conduct.

  1. Important Study Point

To be guilty of an offense, it is sufficient that the person’s conduct included a voluntary act. It is not necessary that all aspects of his conduct be voluntary.

  1. Rationale of Voluntary Act Requirement
    1. Utilitarian
      • person who acts involuntarily cannot be deterred. Therefore, it is useless to punish the involuntary actor. It results in pain without the benefit of crime reduction.
    2. Retribution
      • more persuasive justification for the voluntary act requirement is that blame and punishment presuppose free will: a person does not deserve to be punished unless she chooses to put her bad thoughts into action.


  1. General Rule

Ordinarily, a person is not guilty of a crime for failing to act, even if such failure permits harm to occur to another, and even if the person could act at no risk to personal safety.

  1. Rationale for the General Rule
    1. Proving the Omitter’s State of Mind

Criminal conduct requires a guilty state of mind (mens rea). It is unusually difficult to determine the state of mind of one who fails to act.

  1. Line-drawing problems

Difficult line-drawing problems—which omitters should be prosecuted?— arise in omission cases.

  1. Promoting individual liberty

In a society such as ours, premised on individual liberties and limited government, the criminal law should be used to prevent persons from causing positive harm to others, but it should not be used to coerce people to act to benefit others.

  1. Exceptions to the General Rule

Notwithstanding the general rule, a person has a legal duty to act in limited circumstances, if he is physically capable of doing so.

  1. Crimes of Omission: Statutory Duty

Some statutes expressly require a person to perform specified acts. Failure to perform those acts, by definition, constitutes an offense. Such an offense may be characterized as a “crime of omission.”

  1. Crimes of Commission

The criminal law sometimes permits prosecution for a crime of commission (an offense that, by definition, appears to require proof of conduct, rather than an omission), although the basis of the prosecution is an omission. Thus, we have a case of what might be characterized as commission-by-omission.

  1. Duty by Status
    • person has a common law duty to protect another with whom hehas a special status relationship, typically, one based on dependency or interdependency, such as parent-to-child, spouse-to-spouse, and master-to-servant.
  2. Duty by Contract
    • person may have an express contract to come to the aid of another,or such a contract may be implied-in-law.
  3. Duty by Voluntary Assumption

One who voluntarily assumes the care of another must continue to assist if a subsequent omission would place the victim in a worse position than if the good samaritan had not assumed care at all.

  1. Duty by Risk Creation

One who creates a risk of harm to another must thereafter act to prevent ensuing harm.


  1. Definition

“Social harm” may be defined as the destruction of, injury to, or endangerment of, some socially valuable interest.

  1. Identifying the Social Harm

You can determine the “social harm” of an offense by looking at the definition of the crime and identifying the elements of it that describe the external conduct that constitutes the crime.

  1. Breaking Down the Social Harm Into Categories

It is sometimes essential for a lawyer (especially in jurisdictions that follow the Model Penal Code) to be able to look at the definition of a crime, more specifically the actus reus portion, and divide up the “social harm” elements into one or more of the following three categories.

  1. “Result” Elements (or Crimes)

Some crimes prohibit a specific result, such as the death of another person.

  1. “Conduct” Elements (or Crimes)

Some crimes prohibit specific conduct, whether or not tangible harm results thereby, such as offenses that prohibit drunk driving.

  1. “Attendant Circumstance” Elements

A “result” or “conduct” is not an offense unless certain “attendant circumstances” exist. An “attendant circumstance” is a fact that exists at the time of the actor’s conduct, or at the time of a particular result, and which is required to be proven in the definition of the offense.



  1. Meaning of “Mens Rea
    1. Broad (“Culpability”) Meaning

A person has acted with “mens rea” in the broad sense of the term if she committed the actus reus of an offense with a “vicious will,” “evil mind,” or “morally blameworthy” or “culpable” state of mind.

  1. Narrow (“Elemental”) Meaning

Mens rea” exists in the narrow sense of the term if, but only if, a person commits the actus reus of an offense with the particular mental state set out expressly in the definition of that offense. This may be called the “elemental” definition of mens rea.

  1. Rationale of the Mens Rea Requirement
    1. Utilitarian Argument

It is frequently asserted that a person who commits the actus reus of an offense without a mens rea is not dangerous, could not have been deterred, and is not in need of reform. Therefore, her punishment would be counter-utilitarian. (There is a competing utilitarian argument set out in the Main Outline.)

  1. Retributive Argument

The mens rea requirement is solidly supported by the retributive principle of just deserts. A person who commits the actus reus of an offense in a morally innocent manner, i.e., accidentally, does not deserve to be punished, as she did not choose to act unlawfully.


  1. “Intentionally”
    1. Definition
      • person commits the social harm of an offense “intentionally” if: (1) it was her conscious object to cause the result; or (2) if she knew that the result was virtually certain to occur because of her conduct.
    2. Transferred Intent Doctrine

Courts frequently speak of a “transferred intent” doctrine: A person acts “intentionally” as the term is defined above, if the result of her conduct differs from that which she desired only in respect to the identity of the victim.

  1. “Knowledge” or “Knowingly”
    1. Definition

Some offenses require proof that the actor had knowledge of an attendant circumstance. At common law, a person acts “knowingly” regarding an existing fact (an “attendant circumstance”) if she either: (1) is aware of the fact; (2) correctly believes that the fact exists; or (3) suspects that the fact exists and purposely avoids learning if her suspicion is correct. The latter form of “knowledge” is sometimes called “wilful blindness.”

  1. Risk-Taking: “Recklessness” and “Criminal Negligence”
    1. Overview

Risk-taking is properly divisible into various types: justifiable risktaking; unjustifiable risk-taking that may properly result in tort damages; and unjustifiable risk-taking that may also result in criminal punishment. The latter forms of risk-taking are frequently described as “negligent” risk-taking and “reckless” risk-taking.

  1. Unjustified Risk-Taking

In order to determine whether risk-taking is justifiable or not, one must look at three factors: the gravity of harm that a reasonable person would foresee might occur as the result of the risk-taking conduct; the probability that this harm will occur; and the reason for the proposed conduct, i.e., the benefit to the individual or society of taking the risk. A risk is unjustifiable if the gravity of the foreseeable harm, multiplied by the probability of its occurrence, outweighs the foreseeable benefit from the conduct.

  1. “Criminal Negligence”
    • person acts in a “criminally negligent” manner if she should be aware that her conduct creates a substantial and unjustifiable risk of social harm. Synonyms for “criminal negligence,” include “gross negligence” and “culpable negligence.”
  2. “Recklessness”
    1. Holmes’s View

Oliver Wendell Holmes, Jr., believed that a person acts “recklessly” if she should be aware that she is taking a very substantial and unjustifiable risk. This is simply a heightened version of “criminal negligence.” Notice: “civil negligence” involves unjustifiable risktaking; “criminal negligence” is substantial and unjustifiable risktaking; and “recklessness” (as defined here) is very substantial and unjustifiable risk-taking.

  1. Modern Definition

Most courts now provide that a person acts “recklessly” if she consciously disregards a substantial and unjustifiable risk that her conduct will cause the social harm of the offense. Under this definition, “recklessness” differs from “criminal negligence” in that it requires that the actor subjectively be aware of the substantial and unjustifiable risk.

  1. “Malice”

A person acts with “malice” if she intentionally or recklessly causes the social harm of an offense, as the latter mens rea terms are defined above.

  1. “Specific Intent” and “General Intent”

The common law distinguishes between “general intent” and “specific intent” crimes. The distinction is critical, because some defenses apply only, or more broadly, in the case of so-called “specific intent” offenses.

  1. “Specific Intent” Offenses

In most cases, a “specific intent” offense is one that explicitly contains one of the following mens rea elements in its definition: (1) the intent to commit some act over and beyond the actus reus of the offense; (2) a special motive for committing the actus reus of the offense; or (3) awareness of a particular attendant circumstance.

  1. “General Intent” Offenses

Any offense that requires proof of a culpable mental state, but which does not contain a specific intent, is a “general intent” offense. Sometimes, such an offense will have no explicit mens rea term in the definition of the offense; it is enough that the defendant committed the actus reus with any culpable state of mind.

  1. Statutory Construction

A frequent issue in criminal law litigation is whether a mens rea term in the definition of an offense applies to all or only some of the actus reus elements in the definition of the crime. In the absence of explicit rules, courts have struggled to interpret modern statutes.

  1. Common Law Interpretive Rules Of Thumb
    1. Legislative intent

The ultimate issue for any court today—always—is to determine what the legislature intended. A court will try to resolve interpretive problems by ascertaining the intention of the drafters of the law, sometimes by looking through legislative history. Often, however, evidence regarding legislative intent is non-existent or ambiguous, so courts must look elsewhere.

  1. Position of the Mens Rea term in Definition of Offense

Courts often look at the placement of the mens rea term in the definition of the offense, in order to ascertain legislative intent. See the Main Outline for a useful example.

  1. Punctuation

Sometimes punctuation is relied upon to determine that a phrase set off by commas is independent of the language that precedes or follows it.

  1. Attendant Circumstances

Courts sometimes assume that, absent evidence to the contrary, mens rea terms in the definitions of offenses do not apply to “attendant circumstance” elements of the crime.


  1. Section 2.02, Subsection 1
    1. Language

In general, “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.”

  1. Significance of Subsection
    1. Role of Mens Rea

In general, the MPC requires proof of mens rea. More significantly, it requires proof of some particular mens rea—purpose, knowledge, recklessness, or negligence—as to each material element of the offense. This contrasts with the common law, where there might be a mens rea requirement as to one element but no mens rea required as to other elements. In other words, with the MPC, each actus reus element should be “covered” by some mens rea requirement.

  1. Culpability Terms Defined
    1. Purposely

The common law term “intentionally” is not used in the Model Penal Code. Instead, the MPC subdivides “intent” into its two alternative components, and calls them “purposely” and “knowingly.” A person causes a result “purposely” if it is her conscious object to cause the result.

  1. Knowingly
    1. Results
      • person “knowingly” causes a result if she is aware that the result is “practically certain” to occur from her conduct.
    2. Attendant Circumstances
      • person acts “knowingly” as to an attendant circumstance if he is aware that the circumstance exists, or if he is aware “of a high probability of its existence, unless he actually believes that it does not exist.” The latter provision is the Code version of the “wilful blindness” doctrine discussed earlier.
    3. Recklessly
      1. Basic Definition
        • person is said to have acted recklessly if “he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.”
      2. Standard for Evaluating Conduct

The Code provides, basically, that the standard discussed earlier— measuring the gravity of foreseeable harm, the probability of its occurrence, and the reasons for taking the risk—should be applied.

One is reckless when the risk-taking “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”

  1. Negligently

A person acts negligently when he should be aware of a “substantial and unjustifiable risk.” This is a risk that constitutes “a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” The critical difference between recklessness and negligence under the Code is that in the former case, the actor is consciously aware of the substantial and unjustifiable risk, but proceeds anyway; in the case of negligence, the actor is not aware of the risk, but should be.

  1. Interpretative Rules
    1. Default Position

The MPC requires some mens rea term for each element of an offense (§ 2.05 aside). If the statute defining an offense is silent regarding the issue of mens rea as to one or more of the actus reus elements, the Code provides that “such element is established if a person acts purposely, knowingly, or recklessly with respect thereto.” In essence, you fill in the blank with “purposely, knowingly, or recklessly.”

  1. When Just One Mens Rea Term is Mentioned

If the definition of a MPC statute only sets out a single mens rea element in the definition of the offense, that mens rea term applies to every material element of the offense, unless a contrary legislative intent “plainly appears.”


  1. Nature of a Strict Liability Offense

An offense is “strict liability” in nature if commission of the actus reus of the offense, without proof of a mens rea, is sufficient to convict the actor.

  1. Public Welfare Offenses

Strict liability most often applies in relation to “public welfare” offenses.

  1. Characteristics of Most Public Welfare Offenses
    1. Nature of the Conduct

Such offenses typically involve malum prohibitum conduct, i.e., conduct that is wrongful only because it is prohibited (e.g., motor vehicle laws), as distinguished from malum in se conduct, i.e., inherently wrongful conduct (e.g., murder).

  1. Punishment

The penalty for violation of a public welfare offense is usually minor, such as a monetary fine or a very short jail sentence.

  1. Degree of Social Danger

A single violation of a public welfare offense often threatens the safety of many persons, e.g., transportation of explosives on a highway not designated for such use.

  1. Non-Public Welfare Offenses

On rare occasion, non-public welfare offenses are considered strict liability in nature. Statutory rape is the most common example of such an offense.

  1. Constitutionality of Strict Liability Offenses

Strict-liability offenses are not per se unconstitutional. Nonetheless, there is a strong presumption against strict liability as to offenses that have their roots in the common law. In such circumstances, a court will not assume (absent evidence to the contrary) that the legislature intended to abandon the common law mens rea requirement, even if the statute is silent regarding this element.



  1. Common Law
    1. Specific-Intent Offenses
      • defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element of the offense. Even an unreasonable mistake of fact—a mistake that a reasonable person would not make— may exculpate the actor, assuming the mistake negatives the mens rea required for the offense.
    2. General-Intent Offenses
    3. Ordinary Rule

A defendant is not guilty of a general-intent offense if her mistake of fact was reasonable. An unreasonable mistake of fact does not exculpate.

  1. Exception: “Moral Wrong” Doctrine

Although the principle stated above is the general rule, on rare occasion a court will convict a defendant of an offense, although her mistake of fact was reasonable, if her conduct violates the “moral wrong” doctrine. This doctrine provides that there should be no exculpation for a mistake where, if the facts had been as the actor believed them to be, her conduct would be immoral, albeit legal. By knowingly committing a morally wrong act, an actor assumes the risk that the facts are not as she believed them to be, i.e., that her actions are not just morally wrong, but also legally wrong.

  1. Alternative Exception: “Legal Wrong” Doctrine

Occasionally, a court will convict a defendant of an offense, although her mistake of fact was reasonable, if her conduct violates the “legal wrong” doctrine. This rule substitutes the word “illegal” for “immoral” in the description of the moral-wrong doctrine, but is otherwise applied in the same manner. Thus, a person is guilty of criminal offense X, despite a reasonable mistake of fact, if she would be guilty of a different, albeit lesser, crime Y, if the factual situation were as she supposed.

  1. Strict-Liability Offenses
    • mistake of fact, whether reasonable or unreasonable, is never a defense to a strict-liability offense. This rule is logical: a strict-liability offense is one that requires no proof of mens rea. Therefore, there is no mens rea to negate. A defendant’s mistake of fact is legally irrelevant.
  2. Model Penal Code
    1. General Rule

Subject to one exception noted below, a mistake of fact is a defense to a crime if the mistake negates a mental state element required in the definition of the offense. The Code dispenses with the common law distinction between “general intent” and “specific intent” offenses: the mistake-of-fact rule applies to all offenses in the same manner.

  1. Exception to the General Rule

In a variation on the common law legal-wrong doctrine, the defense of mistake-of-fact is inapplicable if the defendant would be guilty of a lesser offense had the facts been as she believed them to be. However, under such circumstances—unlike the common law—the defendant will be punished at the level of the lesser, rather than the greater, offense.


  1. General Principles
    1. General Rule

In general, knowledge of the law is not an element of an offense. Moreover, a mistake of law—even a reasonable one!—does not ordinarily relieve an actor of liability for the commission of a criminal offense.

  1. Purported Justifications for the Rule
    1. Certainty of the Law

The law is definite. Therefore, any mistake of law is inherently unreasonable. See the Main Outline for rebuttal arguments.

  1. Concern about Fraud

If a mistake-of-law defense were recognized, it would invite fraud. Every defendant would assert ignorance or mistake, and it would be nearly impossible to disprove the claim. See the Main Outline for rebuttal arguments.

  1. Promoting Knowledge of the Law

We want people to learn the law. To promote education—to deter ignorance—the law must apply strict liability principles. See the Main Outline for rebuttal arguments.

  1. Exceptions to the General Rule
    1. Mistakes That Negate the Mens Rea

A defendant is not guilty of an offense if his mistake of law, whether reasonable or unreasonable, negates an element of the crime charged.

  1. Authorized-Reliance Doctrine

A person is not guilty of a criminal offense if, at the time of the offense, he reasonably relied on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

  1. On Whom or What Body is Reliance Reasonable

Although the common law is less clear than the Model Penal Code in this regard, apparently a defendant may reasonably rely on an official statement of the law found in a statute, judicial opinion, administrative ruling, or an official interpretation of the law given by one who is responsible for the law’s enforcement or interpretation, such as the United States or State Attorney General.

  1. Due Process Clause

In very rare circumstances, it offends due process to punish a person for a crime of which she was unaware at the time of her conduct. The Due Process Clause apparently is violated if three factors exist: (1) the “unknown” offense criminalizes an omission; (2) the duty to act is based on a status condition rather than conduct; and (3) the offense is malum prohibitum in nature.



  1. General Principles
    1. Rule

A person is not guilty of an offense unless she is an actual cause of the ensuing harm. Both the common law and the Model Penal Code provide that conduct is the “actual cause” of the prohibited result if the result would not have occurred but for the actor’s conduct.

  1. Steps for Determining the “Actual Cause”
    1. Identifying the Relevant Conduct

Determine what is (are) the relevant voluntary act(s) committed by D. If the case is based on an omission, determine what the omission is, and substitute that for the “voluntary act” in the following discussion.

  1. Frame the Question Properly

Ask the question: “But for D’s voluntary act(s) would the social harm have occurred when it did?” If the social harm would have occurred when it did even if D had not acted, D is not the actual cause of the harm and, therefore, is not guilty of the offense. In a sense, “yes” means “no” (no criminal liability). If the social harm would not have occurred when it did but for D’s voluntary act(s), D is an actual cause of the social harm, in which case you move on to the remaining causation issue (proximate cause).

  1. Multiple Actual Causes

There usually are multiple actual causes of a result. A person who dies of lung cancer, for example, might not have died when she did but for her smoking habit and living in a smog-polluted city. It can also be the case that two persons—two potential defendants—are the actual cause of a result. See the Main Outline for useful examples.

  1. Concurrent Sufficient Causes

In rare circumstances, the “but for” test may fail to reach the morally sensible result. The problem arises when two acts, either one of which is sufficient to cause the resulting harm when it did, occur concurrently. See the Main Outline for useful examples.

  1. Substantial Factor Test

In such cases, many courts resort to the “substantial factor” test, a standard that is often used in tort cases. The question to be asked is: “Was D’s conduct a substantial factor in the resulting harm?”

  1. Model Penal Code

The MPC does not apply the substantial factor test—it uses the “but for” test in all cases. However, the Commentary to the Code explains that, in deciding whether a defendant was a “but for” cause of a “result,” one would state the “result” with great specificity. See the Main Outline for details.


  1. General Principles
    1. Role of “Proximate Cause” In Legal Analysis

A person who is an actual cause of resulting harm is not responsible for it unless she is also the proximate (or “legal”) cause of the harm. When the law states that a defendant was the proximate cause of a result, this is a shorthand way of saying that it is morally just to hold this person responsible for the harm.

  1. Common Law, Model Penal Code, and Study Point

As with any “what is just” analysis, there is no single or straightforward answer. The common law provides various potential factors to consider. The drafters of the Code have another way of handling the issue: they treat “proximate causation” as a culpability, rather than causal, issue. The MPC issue is whether the defendant can be said to have purposely, knowingly, recklessly, or negligently (whichever is relevant in a particular case) caused “a particular result” if the “result” occurs in an odd or unexpected manner. The Code takes all of the common law factors discussed below and basically rolls them into one, explicit, policy question for the jury: Was “the actual result . . . too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.”

  1. Direct Cause

A direct cause is a but-for cause, in which no other cause intervenes between it and the resulting social harm. A voluntary act that is a direct cause of the social harm is also a proximate cause of it. This is because there is no other candidate for causal responsibility.

  1. Intervening Cause
    1. Definition

An “intervening cause” is an actual cause (a “but for” cause) of social harm that arises after D’s causal contribution to the result.

  1. General Role of Intervening Causes

An intervening cause does not necessarily relieve a defendant of causal responsibility for the resulting harm. At common law, various factors come into play in proximate causation analysis.

  1. Nature of Intervening Cause

It is useful, although not always dispositive, to determine whether the intervening cause was “dependent” or “independent” of the defendant’s act.

  1. “Dependent” and “Independent” Distinguished

An intervening cause is dependent if it occurs in response to the defendant’s earlier conduct. An intervening cause is independent if the factor would have come into play even in the absence of the defendant’s conduct.

  1. Legal Significance of Terminology

Generally speaking, a defendant is responsible for a dependent intervening cause, unless the dependent intervening act was not only unforeseeable but freakish. In contrast, a defendant is not ordinarily responsible for an independent intervening cause, unless its occurrence was foreseeable to a reasonable person in the defendant’s situation.

  1. Other Important Factors
    1. Intended Consequences Doctrine

In general, a defendant is the proximate cause of a result, even if there is an intervening cause, if the defendant intended the result that occurred. But, one should be very precise in stating what result the defendant intended: a person may want someone dead in a particular manner, in which case this doctrine only applies if the result occurs in the desired manner.

  1. Free, Deliberate, Informed Human Intervention

In general, a defendant is not the proximate cause of a result if a free, deliberate, and informed act of another human being intervenes.

  1. Apparent Safety Doctrine

Even though the defendant has created a dangerous situation, she is not responsible for the ensuing result if it can be determined that the dangerous situation created by the defendant is over—that the victim, once at risk, has reached apparent safety.



  1. Definition

A justification defense is one that indicates society’s conclusion that the defendant’s conduct was morally good, socially desirable, or (at least) not wrongful.

  1. Basic Structure of Justification Defenses

In general, a justification defense contains three components.

  1. Necessity

Ordinarily, use of force against another is not justifiable unless it is necessary.

  1. Proportionality

Ordinarily, a person may not use force that is disproportional to the threat that motivates the use of force. For example, deadly force should not be used to repel a non-deadly threat.

  1. Reasonable Belief

Ordinarily, a defendant must possess a reasonable (even if incorrect) belief that the use of force is necessary and proportional to the supposed threat.


  1. Common Law
  1. General Rule

Subject to clarification below, a person is justified in using deadly force against another if: (a) he is not the aggressor; and (b) he reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person.

  1. Definition of “Deadly Force”

The term “deadly force”—whether applied to the actions of the aggressor or the person resisting aggression—is typically defined as “force likely to cause, or intended to cause, death or serious bodily harm.”

  1. “Aggressor”

An aggressor may not use deadly force in self-defense. It is possible, however, for an aggressor to purge himself of his status as an aggressor and regain the right of self-defense.

  1. Definition

An “aggressor” is one who commits an “unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences.”

  1. Losing the “Aggressor” Status
  2. Non-deadly Aggressors

A, a nondeadly aggressor, may regain her right of self-defense against B, if B responds to A’s nondeadly aggression by threatening to use excessive—deadly—force in response. Courts differ, however, regarding how A regains the right to use deadly force.

  • Majority Rule

A immediately regains her right of self-defense, as soon as B threatens excessive force.

  • Minority Rule

If B responds to A’s nondeadly aggression by threatening to use deadly force against A, A may not use deadly force in self-defense unless A first retreats, and B continues to threaten A with deadly force. If no safe retreat is possible, however, A may immediately use deadly force.

  1. Deadly Aggressor

A, a deadly aggressor, loses the right of self-defense in a conflict unless she abandons her deadly design and communicates this fact to B.

  1. Proportionality of Force: Deadly Against Deadly

Deadly force may never be used in response to a nondeadly threat, even if this is the only way to repel the nondeadly threat.

  1. “Unlawful Force”/“Unlawful Threat”

A person has no right to defend herself against lawful justified force. She may only respond to unlawful threats of force.

  1. “Imminency”

Although modern courts are somewhat less strict than their predecessors, generally speaking a person may not use deadly force in self-defense unless the aggressor’s threatened force will occur immediately, almost at that instant.

  1. Necessity to Use Deadly Force

A person may not use deadly force unless it is necessary.

  1. Use of Less Force
    • person may not use deadly force to repel an unlawful deadly attack if more moderate (nondeadly) force will do the job.
  2. Retreat?

Must non-aggressors retreat—flee to a safe place—rather than stand their ground and use deadly force? Today, there is a conflict on this subject in non-Model Penal Code jurisdictions. A majority of non MPC jurisdictions do not have a retreat requirement. A minority of jurisdictions provide that, with one key exception, a non-aggressor may not use deadly force to repel an attack if she knows of a completely safe place to which she can retreat. The exception is that a non-aggressor is never required to retreat from her own home.

  1. “Reasonable Belief”
    1. General Rule

The self-defense rules discussed above are modified by the “reasonable belief” principle, which provides that a person may use deadly force in self-defense if she has reasonable grounds to believe, and actually believes, that she is in imminent danger of death or serious bodily harm, and that use of deadly force is necessary to protect herself, even if her reasonable beliefs in these regards are incorrect.

  1. What Is a “Reasonable Belief”?
    • reasonable belief is a belief that a reasonable person would hold in the actor’s situation. But, that only shifts the question to the issue: who is a “reasonable person”? Ordinarily, the defendant’s physical characteristics may be incorporated into the “reasonable person.” Many courts today also subscribe to the view that prior experiences of the defendant (such as her prior experiences with the decedent) that help the defendant evaluate the present situation are relevant.
  2. Battered Women and Self-Defense

How should the law deal with the situation of a woman, physically abused for years by her husband or live-in partner, who kills her abuser at a moment when she is not, in fact, under imminent attack, for example, when the batterer is sleeping? Can we say that the battered woman reasonably believed that the batterer represented an imminent threat in such nonconfrontational circumstances?

  1. Legal Trends

Most courts prohibit an instruction on self-defense if the homicide occurred in nonconfrontational circumstances, on the ground that no reasonable juror could believe that the defendant, as a reasonable person, would believe that a sleeping man represents an imminent threat. But, a few courts now do permit such cases to go to the jury, if Battered Woman Syndrome evidence is introduced to show that the defendant, as a battered woman, suffered from this condition. See the Main Outline for discussion of this syndrome evidence.

  1. Model Penal Code
  1. General Rule

Subject to the limitations discussed below, a person is not justified in using deadly force against another unless she believes that such force is immediately necessary to protect herself against the exercise of unlawful deadly force, force likely to cause serious bodily harm, a kidnapping, or sexual intercourse compelled by force or threat, by the other person on the present occasion. See the Main Outline for a comparison of this rule to the common law.

  1. Limitations on General Rule

Even if deadly force is otherwise permitted, it is impermissible in two key circumstances.

  1. Defendant as Aggressor

As with the common law, the defense is not permitted if the actor is the aggressor, which the Code defines as one who “provokes” the use of force against herself “in the same encounter” for the “purpose of causing death or serious bodily injury.”

  1. Retreat

The Code follows the minority common law position that a nonaggressor must retreat if she knows that she can thereby avoid the need to use deadly force with complete safety to herself. This retreat requirement, however, is itself subject to various exceptions, most notably that a person need not retreat from her own dwelling.

  1. Other “Non-Necessity” Circumstances

The Code explicitly provides that deadly force may not be used if, subject to various exceptions, the defendant can avoid doing so “by


  1. Defense of Property
  2. Common Law

A person is never justified in using deadly force to defend her real or personal property. A person is justified in using nondeadly force if she reasonably believes that such force is necessary to prevent the imminent, unlawful dispossession of her property. Some jurisdictions also provide that, prior to using force, the property defender must ask the dispossessor to desist from his conduct, unless such a request would be futile or dangerous.

  1. Important Clarification

With one exception, the defender must be in lawful possession of the property at the time force is used. If she has already been dispossessed of the property, force may not be used to recapture the property. Instead, the victim of dispossession must seek judicial redress. The exception to this rule is that nondeadly force is permitted in fresh pursuit of a dispossessor of property. In such circumstances, the use of force to recapture the property is treated as an extension of the original effort to prevent dispossession.

  1. Another Important Clarification

The defender’s right to use force is based on her rightful possession of the property; she does not need to have title to it.

  1. Model Penal Code

The MPC differs from the common law in various key respects.

  1. Belief Requirement

As with other justifications defenses, the right to use force to protect property is based on the actor’s subjective belief, subject to the provisions of § 3.09, previously discussed in the Main Outline.

  1. Recapture of Property

With one exception, the MPC goes further than the common law in that it generally authorizes use of nondeadly force to retake possession of land or recapture personal property, even after fresh pursuit has ended, if the actor believes that the dispossessor has no claim of right to the property. The exception is that in the case of land, a recapturer may not use force unless she believes that it would constitute an “exceptional hardship” to delay re-entry until she can obtain a court order.

  1. Deadly Force

The Code authorizes the use of deadly force if D believes that V: (1) intends to dispossess D of his dwelling other than under a claim of-right to possession; or (2) intends to commit arson, burglary, robbery or felonious theft inside the dwelling and (2a) V “has employed or threatened deadly force against or in the presence” of D or (2b) the use of nondeadly force to prevent commission of the crime would expose D or another to substantial risk of serious bodily harm.

  1. Defense of Habitation
    1. Common Law
      1. Older, Broader Rule

D is justified in using deadly force against V if the actor reasonably believes that: (1) V intends unlawfully and imminently to enter D’s dwelling; (2) V intends to commit any felony inside, or to cause bodily injury, no matter how slight, to any occupant; and (3) deadly force is necessary to prevent the entry.

  1. Narrower Rule

Many (perhaps most) jurisdictions no longer apply the broad rule set out above and instead hold that deadly force is limited to circumstances in which D believes that V will commit an atrocious (violent) felony inside the dwelling if V enters. The other requirements set out above (namely (1) and (3)) still apply.

  1. Model Penal Code

The Code does not recognize a separate interest in habitation, as distinguished from defense of property. See the comments above in regard to the MPC defense-of-property claim.

  1. Special Issue: Spring Guns
    1. Common Law

A person may use a spring gun to inflict deadly force on another “where an intrusion is, in fact, such that a person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands.” As the italicized words suggest, the user of the spring gun acts at her peril: the deadly force must be necessary.

  1. Model Penal Code

The justifiable use of force does not extend to any mechanical device that is intended to use, or is known to create, a significant risk of causing death or serious bodily injury.


  1. Crime Prevention
    1. Common Law
      1. Original (Now Minority) Approach

The original common law rule, followed today in a few jurisdictions, is that a police officer or private citizen is justified in using deadly force upon another if she reasonably believes that: (1) the other person is committing any felony; and (2) deadly force is necessary to prevent commission of the crime. This version of the defense is controversial because it can authorize use of force grossly disproportional to the threat caused by the felon.

  1. Modern (Majority) Approach

The majority rule differs from the original rule in one critical way: deadly force is only permitted if the actor reasonably believes that the other person is about to commit an “atrocious” felony, i.e., a felony that involves a significant risk of serious bodily harm to an innocent person. Among the felonies that are considered atrocious are: murder, manslaughter, robbery, arson, rape, and burglary.

  1. Model Penal Code

A police officer or private party may not use deadly force to prevent a felony unless she believes that: (1) there is a substantial risk that the suspect will cause death or serious bodily harm to another unless commission or consummation of the offense is prevented; (2) the force is immediately necessary to prevent commission of the offense; and (3) use of deadly force presents no substantial risk of injury to bystanders. As with other Code justification defenses, the defense is based on the actor’s subjective belief, subject always to Code provisions that permit prosecution for reckless or negligent homicide if the actor’s beliefs were reckless or negligent, as the case may be.

  1. Arrest
    1. Common Law
      1. Rule for Police Officers

A police officer is justified in using deadly force against another if she reasonably believes that: (1) the suspect committed any felony; and (2) such force is necessary to immediately effectuate the arrest. As discussed below, this rule is now subject to constitutional limitation.

  1. Special Problem of “Citizen Arrests”

Common law jurists were hesitant to permit private citizens to use deadly force in “citizen arrests.” Therefore, although the rules vary considerably by jurisdiction, limitations on the use of deadly force by private parties are common. These may include: (i) limitation of the use of deadly force to atrocious felonies; (ii) a requirement that the private person give notice of her intention to make the arrest; and (iii) denial of the defense if the suspect in fact did not commit the felony, even if the private party reasonably believed that she did.

  1. Model Penal Code

Deadly force may never be used by private citizens acting on their own to make an arrest or to prevent a suspect’s escape. However, a police officer (or private citizen assisting the officer) may use deadly force to effectuate an arrest if she believes that: (1) the force can be applied at no risk to innocent bystanders; (2) such force is immediately necessary to make the arrest; and either (3a) the felony for which the person is being arrested included the use or threatened use of deadly force; or (3b) a substantial risk exists that the suspect will cause serious bodily harm to another if she is not apprehended immediately.

  1. Constitutional Law
    1. Overview

The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures” by government officers, including by the police. In turn, an arrest of a person constitutes a “seizure” of that individual. So, police use of force to effectuate an arrest—and, thus, “seize” the person—must be performed in a constitutionally reasonable manner.

2. Tennessee v. Garner

In Tennesee v. Garner (1985), the Supreme Court’s first decision on the subject, the Court held that it is unconstitutional for a police officer to use deadly force against an escaping felon unless: (1) the officer has “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” if the suspect is able to escape; (2) the officer first warns the suspect of her intention to use deadly force (“Stop or I’ll shoot!”), unless such a warning would be futile; and (3) the officer reasonably believes that deadly force is necessary to make the arrest or prevent escape. Thus, deadly force may not be used against, for example, a fleeing unarmed thief.

  1. Beyond Garner
  1. Non-deadly Force

In Graham v. Connor (1989), the Court held “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, should be analyzed under the Fourth Amendment . . . ‘reasonableness’ standard.” Among the relevant factors to be considered, the Court stated, are the seriousness of the crime, the extent to which the suspect poses an immediate threat to the safety of others, and the extent to which the suspect is resisting arrest or attempting to escape.

  1. Deadly Force, Post-Garner

In Scott v. Harris (2007), the Supreme Court returned to the issue of use of deadly force in arrest situations, and suggested that there is no rigid rule for determining when police use of force constitutes an unreasonable seizure of a felon: “In the end we must still slosh through the factbound morass of ‘reasonableness.’ ” Among the factors to consider are those set out above, as well as the “relative culpability” of the persons whose lives are put at risk.


  1. Common Law
    1. Elements of the Defense
      1. Lesser-Evils Analysis

The actor must be faced with a choice of evils or harms, and he must choose to commit the lesser of the evils. Put differently, the harm that D seeks to prevent by his conduct must be greater than the harm he reasonably expects to cause by his conduct. The balancing of the harms is conducted by the judge or jury; the defendant’s belief that he is acting properly is not in itself sufficient.

  1. Imminency of Harm

The actor must be seeking to avoid imminent harm. This rule is strictly enforced: if there is sufficient time to seek a lawful avenue, the actor must take that lawful route.

  1. Causal Element

The actor must reasonably believe that his actions will abate the threatened harm.

  1. Blamelessness of the Actor

Many courts and/or statutes provide that the actor must not be at fault in creating the necessity.

  1. Homicide Prosecutions

It is unclear whether the defense of necessity applies to the crime of murder. Fortunately, the issue has only rarely arisen. The leading case—and the one most likely to be in your casebook—is Regina v. Dudley and Stephens. Read the Main Outline for discussion of this case.

  1. Model Penal Code
    1. Elements

A person is justified in committing an act that otherwise would constitute an offense if: (a) the actor believes that the conduct is necessary to avoid harm to himself or another; (b) the harm that the actor seeks to avoid is greater than that sought to be avoided by the law prohibiting his conduct; and (c) there does not plainly exist any legislative intent to exclude the justification claimed by the actor. If the actor was reckless or negligent in bringing about the emergency, the defense is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, is sufficient to prove guilt.

  1. Comparison to Common Law

Under the Code, the threatened harm need not be imminent. Moreover, the Commentary to the Code expressly states that this defense is available in homicide prosecutions.



  1. Excuse: Defined

An excuse defense is one that indicates that, although the actor committed the elements of the offense, and although his actions were unjustified— wrongful—the law does not blame him for his wrongful conduct.

  1. Justification versus Excuse

A justification defense tends to focus on the wrongfulness of an act or a result; an excuse defense focuses on the actor. The distinction between the two categories of defenses—justifications and excuses—is an important one, more fully laid out in the Main Outline.


  1. Rationale of the Defense: Justification or Excuse?
    1. Duress as a Justification Defense

A few courts and treatises treat duress as if it were sub-species of the necessity defense and, thus, as a justification defense. According to this view, the only meaningful difference between necessity and duress is that the former defense involves natural, i.e., non-human, pressures, whereas duress involves human-based threats (e.g., a terrorist demanding an innocent person to commit a crime against other innocent persons; a criminal forcing an innocent person to rob a bank).

  1. Duress as an Excuse Defense

Most courts and treatises treat duress as an excuse defense, and not as a justification defense. Intuitively, most people believe that a coerced person (based on the definition of duress discussed below) is morally blameless, but not that she has done nothing wrong. The essence of the duress defense is that a person is not to blame for her conduct if, because of an unlawful threat, she lacks a fair opportunity to conform her conduct to the law.

  1. Common Law
    1. Elements of Defense

Generally speaking, a defendant will be acquitted of an offense other than murder on the basis of duress if she proves that she committed the offense because: (a) another person unlawfully threatened imminently to kill or grievously injure her or another person unless she committed the crime; and (b) she is not at fault in exposing herself to the threat. See the Main Outline for more details.

  1. Coerced Homicides

The common law duress defense does not apply to the offense of murder. The no-defense rule is sometimes defended on the utilitarian ground that the drive for self-preservation, although strong, is not irresistible; therefore, people should be persuaded (by the threat of punishment) to resist such coercion. The rule is also defended on the moral ground that it is better to die than to kill an innocent person. However, this latter argument only serves to show that a person is not justified in killing an innocent person. It does not explain why a coerced actor should not be excused on the ground that virtually anyone, short of a saintly hero, would succumb to the coercion.

  1. Intolerable Prison Conditions
    1. The Issue

Suppose a prisoner is threatened by another inmate with sexual or physical assault, is denied critical medical care by prison officials, or is placed in some other intolerable condition. Therefore, the inmate escapes confinement, but is caught and returned to prison. She is now prosecuted for the offense of prison escape. The inmate wishes to avoid conviction by arguing that she fled as a result of the intolerable prison condition. The frequently litigated issue is whether the inmate may make such a claim in court; and, if she may, is her claim one of necessity (justification) or excuse (duress)?

  1. The Law

Originally, courts did not permit inmates to raise prison conditions as a defense to their escape. Today most courts recognize a limited defense. Some courts require the escapee to turn herself in after the escape, once the prison condition “has lost its coercive force,” or else the defense is automatically lost. Other courts are more lenient and treat’s an escapee’s failure to turn herself in as just one factor to be considered by the jury in determining whether the escapee should be acquitted.

  1. Nature of the Defense

Courts are fairly evenly divided on the question of whether the defense claim is basically one of duress or necessity. See the Main Outline for the conceptual problems and practical significance relating to framing the defense as a justification or, alternatively, as an excuse.

  1. Model Penal Code
    1. Defense

The Model Penal Code unambiguously treats duress as an excuse, and not a justification, defense. Thus, the defense may be raised although the defendant did not commit the lesser of two evils. Instead, the defendant must show that: (a) he committed an offense because he was coerced to do so by another person’s use, or threat to use, unlawful force against him or a third party; and (b) a person of reasonable firmness would have committed the offense. The Code further provides that the defense is lost if the coerced actor put himself in a situation “in which it was probable that he would be subjected to duress.” Furthermore, if he was negligent in placing himself in the situation, the defense is unavailable if he is prosecuted for an offense for which negligence is sufficient to prove guilt.

  1. Coerced Homicides

Unlike the common law, there is no bar to use of the duress defense in murder prosecutions. See the Main Outline for details of the other distinctions between the common law and MPC versions of the defense of duress.


  1. Common Law: Voluntary Intoxication
    1. Definition of “Intoxication”

Intoxication may be defined as a disturbance of an actor’s mental or physical capacities resulting from the ingestion of any foreign substance, most notably alcohol or drugs, including lawfully prescribed medication.

  1. Not an Excuse Defense
    • person is never excused for his criminal conduct on the ground that he became voluntarily intoxicated. Indeed, the act of getting intoxicated enhances, rather than mitigates, culpability.
  2. Mens Rea Defense

Although voluntary intoxication is not an excuse for criminal conduct, most jurisdictions following the common law provide that a person is not guilty of a specific-intent offense if, as the result of voluntary intoxication, he lacked the capacity or otherwise did not form the specific intent required for the crime. However, voluntary intoxication does not exculpate for general-intent offenses.

  1. “Temporary” Insanity
    • defendant is not entitled to argue that, due to voluntary intoxication, he did not know right from wrong, or did not know what he was doing, at the time of the offense, even though such a mental state would result in acquittal on insanity grounds if he suffered from a mental illness.
  2. “Fixed” Insanity

Long-term use of alcohol or drugs can cause brain damage or cause the individual to suffer from chronic mental illness. In such circumstances, the defendant who seeks acquittal is not claiming he should be exculpated because he was voluntarily intoxicated at the time of the crime, but rather that, because of long-term use of intoxicants, he is insane. Such a claim is recognized by the common law, but the applicable defense is insanity, and not intoxication.

  1. Model Penal Code: “Self-Induced” (Voluntary) Intoxication

Subject to one exception, voluntary intoxication is a defense to any crime if it negates an element of the offense.

  1. Exception to General Rule

If the defendant is charged with an offense for which recklessness suffices to convict, she cannot avoid conviction by proving that, because of intoxication, she was unaware of the riskiness of her conduct. That is, even if the defendant’s actual culpability is that of negligence—she should have been aware that her conduct created a substantial and unjustifiable risk of harm—she may be convicted of an offense requiring recklessness (which ordinarily requires actual awareness of the risk), if the reason for her failure to perceive the risk is her self-induced intoxication.

  1. Involuntary Intoxication
    1. What Makes Intoxication Involuntary?

Intoxication is involuntary if: (a) coercion: the actor is forced to ingest the intoxicant; (b) mistake: the actor innocently ingests an intoxicant; (c) prescribed medication: the actor becomes unexpectedly intoxicated from ingestion of a medically prescribed drug, perhaps due to an allergic reaction; or (d) pathological intoxication: the actor’s intoxication is “grossly excessive in degree, given the amount of intoxicant, to which the actor does not know he is susceptible.”

  1. When Does Involuntary Intoxication Exculpate?
    1. Lack of Mens Rea

The defendant will be acquitted if, as a result of involuntary intoxication, the actor lacks the requisite mental state of the offense for which she was charged, whether the offense could be denominated as specific-intent or general-intent. This is the common law and MPC rule.

  1. “Temporary Insanity”

Unlike the rule with voluntary intoxication, a defendant will be exculpated on the ground of “temporary insanity” if, due to involuntary intoxication rather than mental illness, she otherwise satisfies the jurisdiction’s insanity test (e.g., she did not know right from wrong, or did not understand what she was doing, because of involuntary intoxication). This is the common law and Model Penal Code rule.


  1. Rationale of Defense
    1. Utilitarian Argument
      • person who suffers from a severe cognitive or volitional disorder, e., a disorder that undermines the actor’s ability to perceive reality (cognition) or to control her conduct (volition), is undeterrable by the threat of punishment. Therefore, punishment is inefficacious. See the Main Outline for counter-arguments.
    2. Retributive Argument

The insanity defense distinguishes the mad from the bad; it separates those whom we consider evil from those whom we consider sick. A person is not a moral agent, and thus is not fairly subject to moral condemnation, if she lacked the capacity to make a rational choice to violate the law or if she lacks the capacity to control her conduct.

  1. The M’Naghten Test of Insanity
    1. Rule
      • person is legally insane if, at the time of the act, he was laboring undersuch a defect of reason, from disease of the mind, as: (1) not to know the nature and quality of the act he was doing; or, (2), if he did know it, that he did not know what he was doing was wrong. See the Main Outline for criticisms of the M’Naghten
    2. Clarification of the Rule
    3. “Know” versus “Appreciate”

Although the M’Naghten test originally was phrased in terms of whether the defendant “knew” the nature and quality of his action or “knew” right from wrong, many jurisdictions now use the word “appreciate.” “Appreciate” is a word intended to convey a deeper, or broader, sense of understanding than simple “knowledge.” See the Main Outline for clarification.

  1. “Right/Wrong” Prong

Courts have split fairly evenly on whether this prong refers to legal or moral wrongfulness. In jurisdictions that use the “moral wrong” test, the relevant issue is not whether the defendant believed that his act was morally right, but rather whether he knew (or appreciated) that society considered his actions morally wrong.

  1. The “Irresistible Impulse” (“Control”) Test of Insanity
    1. Rule

In general, this supplement to M’Naghten provides that a person is insane if, as the result of mental illness or defect, she “acted with an irresistible and uncontrollable impulse,” or if she “lost the power to choose between . . . right and wrong, and to avoid doing the act in question, as that [her] free agency was at the time destroyed.” See the Main Outline for criticisms of the test.

  1. The “Product” (Durham) Test of Insanity
    1. Rule
      • person is excused if his unlawful act was the product of a mental disease or defect. As subsequently defined, “mental disease or defect” is “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” Thus, to be acquitted according to this rule, two matters must be proved: the defendant suffered from a mental disease or defect at the time of the crime; and, but for the mental disease or defect, he would not have committed the crime. See the Main Outline for criticisms of the test.
    2. Model Penal Code Test of Insanity
      1. Rule

The MPC test represents a broadened version of the M’Naghten and irresistible impulse tests. With modifications, it retains the second prong of M’Naghten and adds to it a volitional prong. The Code provides that a person is not responsible for her conduct if, at the time of the criminal act, as the result of a mental disease or defect (a term left undefined), she lacked the substantial capacity either: (1) to appreciate the criminality (or, in the alternative, wrongfulness) of her actions; or (2) to conform her conduct to the dictates of the law.

  1. Closer Analysis
    1. Avoiding All-or-Nothing Judgments

Both MPC prongs are modified by the phrase “lacks substantial capacity.” Total cognitive or volitional incapacity is not required.

  1. Cognitive Prong

First, the Code uses the word “appreciate” rather than M’Naghten’s “know,” to permit a deeper, fuller analysis of the individual’s cognitive capacity. Second, the drafters chose not to decide between “legal wrong” and “moral wrong”: they invited legislators, in adopting the Code provision, to choose between the words “criminality” (legal wrong) and “wrongfulness” (moral wrong).

  1. Volitional Prong

This prong is phrased to avoid the undesirable or potentially misleading words “irresistible” and “impulse.” A person who has a very strong, but not irresistible, desire to commit a crime, including one who acts non-impulsively after considerable thought, can fall within the language of the MPC.


  1. Putting “Diminished Capacity” in Context
    1. Mens Rea Version

A defendant may potentially raise a claim of “diminished capacity” in order to show that he lacked the requisite mens rea for an offense. In that manner, “diminished capacity” works like mistake-of-fact or voluntary intoxication—it does not excuse the wrongdoer, but serves to show that the prosecutor has failed to prove an essential element of an offense.

  1. Partial Responsibility Version

“Diminished capacity” may also serve as a highly controversial excuse defense, used exclusively in criminal homicide prosecutions, as a basis for reducing the severity of the offense.

  1. Diminished Capacity and Mens Rea

A sane person may suffer from a mental disability (e.g., mental illness, mental retardation, Alzheimer’s) that arguably prevents him from forming the mental state required for the commission of an offense.

  1. Model Penal Code Approach

As a matter of logic, a defendant should be acquitted of any offense for which he lacked the requisite mens rea, including those cases in which he lacked the mental state because of a mental disability, whether that disability is permanent or temporary. This is the position taken by the Model Penal Code.

  1. Common Law

Logic notwithstanding, most states permit evidence of an abnormal mental condition, if at all, in order to negate the specific intent in a specific-intent offense. Psychiatric evidence is inadmissible in the prosecution of general-intent offenses. A minority of jurisdictions do not permit diminished capacity to be claimed in any case. See the Main Outline for the reasons for judicial hostility to the doctrine of diminished capacity.

  1. Partial Responsibility
    1. Common Law

In this country, the partial defense was originated in California and adopted by a small number of other courts. This rule, no longer followed in California, provides that a person who commits a criminal homicide and suffers from some mental illness or abnormality short of insanity may have her offense reduced because of her diminished mental capacity. States that recognize the partial-responsibility claim permit reduction of the offense from first-degree to second-degree murder, or from murder to manslaughter. The underlying rationale of the partial responsibility doctrine is that a person who does not meet a jurisdiction’s definition of insanity, but who suffers from a mental abnormality, is less deserving of punishment than a killer who acts with a normal state of mind. Therefore, she should be convicted of a lesser offense.

  1. Model Penal Code

The Code provides that a homicide that would otherwise be murder is reduced to manslaughter if the homicide was the result of “extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.” This language is intended to permit courts to recognize a partial responsibility defense.


  1. Overview

Entrapment issues arise when law enforcement agencies use undercover police officers to investigate crimes. The issue is how far the police may go in such undercover activity. Over time, two different approaches have developed, one called the “subjective” approach, which is followed in federal courts and many state courts; the other is the “objective” approach followed by some states.

  1. Subjective Test
    1. Test

Entrapment is proved if a government agent implants in the mind of an innocent person the disposition to commit the alleged offense and induces its commission in order that the government may prosecute. The defense does not apply if a private party, rather than a government agent, induces the crime. According to the Supreme Court, the police may employ “artifice and stratagem” to trap an unwary criminal, but it is improper when a criminal design, originating with the government, is used to induce an innocent person.

  1. Predisposition of the Defendant

Applying the subjective test, entrapment does not occur if the government agent induces a “predisposed” person to commit the offense. A person is criminally “predisposed,” if, when he is first approached by the government, he is ready and willing to commit the type of crime charged if a favorable opportunity to do so presents itself.

  1. Rationale of the Subjective Test

The Supreme Court justifies the subjective version of entrapment on the ground that Congress did not intend its criminal sanctions to be applied to innocent persons induced by government officials to commit criminal offenses. See the Main Outline for the criticisms of the subjective test.

  1. “Objective” Test
    1. Test

In states that apply this standard, the test generally seeks to determine whether “the police conduct falls below standards, to which common feelings respond for the proper use of government power.” Some states provide that entrapment only exists if the police conduct is sufficiently egregious that it would induce an ordinary law-abiding individual to commit the offense.

  1. Rationale of the Objective Test

First, the defense should be used to deter police overreaching. Second, some argue that a court should protect “the purity of its own temple” by making sure that guilt is not proved by ignoble means. See the Main Outline for the criticisms of the objective test.

  1. Procedural Aspects of “Entrapment”

Although entrapment is a criminal law defense, some jurisdictions (primarily those that apply the objective test) permit the defendant to raise the defense in a pre-trial hearing before a judge. If the judge determines that the defendant was entrapped, the prosecution is barred. No trial is held. In most jurisdictions, entrapment is treated like all other defenses: the defendant has the burden to raise the entrapment defense and present evidence in support of the claim at trial. If the factfinder determines that the defendant was entrapped, it brings back a not-guilty verdict.

  1. Entrapment and the Due Process Clause

Although entrapment is not a constitutional doctrine, the Supreme Court has stated in dictum that police conduct could become so outrageous as to violate the Due Process Clause of the United States Constitution. More than once, however, the Court has refused to find a due process violation in entrapment-like circumstances.



  1. Common Law
  2. General Principles
  3. Basic Definition

In general, an attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than mere preparation for, the target (i.e., intended) offense.

  1. Grading of Offense
    • criminal attempt was a common law misdemeanor in England, regardless of the seriousness of the target offense. Today, modern statutes provide that an attempt to commit a felony is a felony, but it is considered a lesser felony that the target offense.
  2. Merger Doctrine
    • criminal attempt merges into the target offense, if it is successfully completed.

2. Actus Reus

There is no single common law test of when an attempt occurs. Typically, the common law tests focus on how close the actor is to completing the target offense. See the Main Outline for examples of each test.

  1. Last Act Test

The rule used to be that a criminal attempt only occurred when a person performed all of the acts that she believed were necessary to commit the target offense. Today, there is general agreement that an attempt occurs at least by the time of the last act, but no jurisdiction requires that it reach this stage on all occasions.

  1. Dangerous Proximity Test

Oliver Wendell Holmes announced the “dangerous proximity to success” test. This standard is not satisfied unless the conduct “is so near to the result that the danger of success is very great.” In this regard, courts consider three factors: the nearness of the danger; the substantiality of the harm; and the degree of apprehension felt. The more serious the offense, the less close the actor must come to completing the offense to be convicted of attempt.

  1. Physical Proximity Test

To be guilty of attempt under this test, an act “must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous circumstances.” Or, stated differently, the actor’s conduct must approach sufficiently near to the completed offense “to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made.”

  1. “Unequivocality”/“Res Ipsa Loquitur” Test

This test provides that a person is not guilty of a criminal attempt until her conduct ceases to be equivocal, i.e., her conduct, standing alone, demonstrates her criminal intent.

  1. Probable Desistance Test

A person is guilty of attempt if she has proceeded past “the point of no return,” i.e., the point past which an ordinary person is likely to abandon her criminal endeavor.

3. Mens Rea

  1. Dual Intent

A criminal attempt involves two “intents.” First, the actor must intentionally commit the acts that constitute the actus reus of an attempt, as discussed above. Second, the actor must commit the actus reus of an attempt with the specific intent to commit the target offense.

  1. Comparing Mens Rea of Attempt to Target Offense

An attempt sometimes requires a higher level of mens rea than is necessary to commit the target offense. Second, “attempt” is a specific-intent offense, even if the target crime is general-intent.

  1. Special Problem: Attendant Circumstances

At common law, it is unclear what mens rea, if any, an actor must possess regarding an attendant circumstance to be guilty of attempt. Some courts hold that a person may be convicted of a criminal attempt if he is, at least, reckless with regard to an attendant circumstance. Other courts believe that it is sufficient that the actor is as culpable regarding an attendant circumstance as is required for that element of the target crime. See the Main Outline for clarification.

  1. Special Defense: Impossibility
  2. General Rule

The common law distinguished between “factual” and “legal” impossibility. The latter was a defense to an attempt; the former was not.

  1. Factual Impossibility

Factual impossibility, which is not a defense, may be defined as occurring when an actor’s intended end constitutes a crime, but he fails to complete the offense because of a factual circumstance unknown to him or beyond his control. One way to phrase this is: if the facts had been as the defendant believed them to be, would his conduct have constituted a crime? If yes, then this is a case of factual impossibility.

  1. Legal Impossibility

There are two varieties of “legal impossibility.”

  1. Pure Legal Impossibility

This form of impossibility applies when an actor engages in lawful conduct that she incorrectly believes constitutes a crime.

  1. Hybrid Legal Impossibility

The more typical case of legal impossibility occurs when an actor’s goal is illegal (this distinguishes it from pure legal impossibility), but commission of the offense is impossible due to a mistake by the actor regarding the legal status of some factual circumstance relevant to her conduct. See the Main Outline for examples.

  1. Model Penal Code
  2. General Principles
  1. Grading of Offense

Unlike the common law and non-MPC statutes, the MPC generally treats inchoate offenses as offenses of the same degree, and thus subject to the same punishment, as the target offense. The one exception is that, for a felony characterized as a “felony of the first degree” under the Code—basically, an offense that carries a maximum punishment of life imprisonment—an attempt to commit such an offense is a felony of the second degree, i.e., a lesser offense.

  1. Merger

The common law merger doctrine applies as well under the Code.

2. Actus Reus

The Code abandons all of the common law tests described above and replaces them with a substantial step standard. Specifically, one has gone far enough to constitute an attempt if the act or omission constitutes a substantial step in the course of conduct planned to culminate in the commission of the crime. One significant difference between the substantial step test and the various common law standards is that, in general, the common law looked to see how close the defendant was to completing the crime, whereas the MPC looks to see how far the defendant’s conduct has proceeded from the point of initiation of the target offense.

3. Mens Rea

Please see the Main Outline for clarification of certain inartfully drafted, but critically important, aspects of the MPC criminal attempt statute.

  1. Rule

The Code uses slightly different language than the common law, but the analysis is essentially the same. A person is not guilty of attempt unless he: “purposely engages in conduct that would constitute the crime”; acts “with the purpose of causing” or “with the belief that it will cause” the criminal result; or “purposely does . . . an act . . . constituting a substantial step” in furtherance of the offense. In short, “purpose” is the mens rea for a criminal attempt.

  1. Special Problem: Attendant Circumstances

The “purpose” requirement for an attempt does not apply to attendant circumstances. As to attendant circumstances, a person is guilty of an attempt if she “act[s] with the kind of culpability otherwise required for commission of the [target] crime.” In short, the actor need only be as culpable regarding an attendant circumstance as is required for the target offense.

  1. Special Defense: Impossibility

The MPC has abandoned the hybrid legal impossibility defense. Pure legal impossibility remains a defense.

  1. Special Defense: Renunciation of Criminal Purpose

The Code (but not the common law) recognizes a defense of “renunciation of criminal purpose.” A person is not guilty of a criminal attempt, even if her actions constitute a substantial step in the commission of an offense, if: (1) she abandons her effort to commit the crime or prevents it from being committed; and (2) her conduct manifests a complete and voluntary renunciation of her criminal purpose. This defense is sometimes described as the “abandonment” defense.


  1. Common Law
  2. General Principles
  3. Definition

A common law conspiracy is an agreement between two or more persons to commit an unlawful act or series of unlawful acts.

  1. Grading

At original common law, conspiracy was a misdemeanor. Today, conspiracy to commit a felony is usually a felony, but typically is a lesser offense than the target crime.

  1. Rationale of the Offense
    1. Preventive Law Enforcement

Like other inchoate offenses, recognition of the offense of conspiracy provides a basis for the police to arrest people before they commit another offense.

  1. Special Dangerousness

Group criminality is considered more dangerous than individual wrongdoing. The thesis is that when people combine to commit an offense, they are more dangerous than an individual criminal, because of their combined resources, strength, and expertise. They are also thought to be less likely to abandon their criminal purpose if they know that other persons are involved.

  1. Merger

A common law conspiracy does not merge into the attempted or completed offense that is the object of the agreement.

2. Actus Reus: Basics

The gist of a conspiracy is the agreement by the parties to commit an unlawful act or series of unlawful acts together.

  1. Overt Act

A common law conspiracy is committed as soon as the agreement is made. No act in furtherance of it is required. Today, many statutes provide that a conspiracy does not occur unless at least one party to the agreement commits an overt act in furtherance of it.

  1. Method of Forming the Agreement

The conspiratorial agreement need not be in writing, nor even be verbally expressed. It may be implied from the actions of the parties.

  1. Nature of Agreement

The object of the agreement must be unlawful. For purposes of conspiracy, an “unlawful” act is a morally wrongful act; it need not be a criminal act.

  1. Mens Rea: The Basics
    1. General Rule

Conspiracy is a dual-intent offense. First, the parties must intend to form an agreement (the actus reus of the conspiracy). Second, they must intend that the object(s) of their agreement be achieved. This second intent makes conspiracy a specific-intent offense.

  1. Purpose versus Knowledge
    1. The Issue

An issue that arises in some conspiracy prosecutions is whether a person may be convicted of conspiracy if, with knowledge that another person intends to commit an unlawful act, but with indifference as to whether the crime is committed, he furnishes an instrumentality for that offense or provides a service to the other person that aids in its commission.

  1. Case Law

The law is split on this issue. Most courts, however, will not convict a person unless he acts with the purpose of promoting or facilitating the offense. Knowledge, coupled with indifference as to whether the offense is committed, is insufficient. But, sometimes one can infer purpose from knowledge. See the Main Outline.

  1. Plurality Requirement

No person is guilty of conspiracy unless two or more persons possess the requisite mens rea. However, the plurality doctrine does not require that two persons be prosecuted and convicted of conspiracy. It is satisfactory that the prosecutor proves beyond a reasonable doubt that there were two or more persons who formed the agreement with the requisite mens rea.

  1. Parties to an Agreement

Even if it is clear that a conspiracy exists, it is sometimes difficult to determine who is a party to the conspiracy. The Main Outline, through examples, discusses so-called “wheel,” “chain,” and “chain-wheel” conspiracies.

  1. Objectives of a Conspiracy

Since the gist of a conspiracy is an agreement, what if the parties to the agreement intend to commit more than one offense. Is this one conspiracy or more? In general, there are as many (or as few) conspiracies as there are agreements made.

  1. Special Defense: Wharton’s Rule
    1. Rule

If a crime by definition requires two or more persons as willing participants, there can be no conspiracy to commit that offense if the only parties to the agreement are those who are necessary to the commission of the underlying offense. This is Wharton’s Rule, a common law defense to conspiracy.

  1. Wharton’s Rule Exceptions

There are two major exceptions: (1) Wharton’s Rule does not apply if the two conspirators are not the parties necessary to commission of the offense; and (2) Wharton’s Rule does not apply if more persons than are necessary to commit the crime are involved in the agreement to commit the crime.

  1. Breakdown of the Rule

Wharton’s Rule is increasingly disliked by courts. The Supreme Court has stated that in federal courts the doctrine is no more than a judicially-created rebuttable presumption. If there is evidence that the legislature intended to reject Wharton’s Rule, then the doctrine will not be enforced.

  1. Special Defense: Legislative-Exemption Rule

A person may not be prosecuted for conspiracy to commit a crime that is intended to protect that person.

  1. Special Defense?: Impossibility

Case law here is particularly thin, but it has been stated that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy.

  1. Special Defense?: Abandonment
    1. No Defense to Crime of Conspiracy

At common law, the crime of conspiracy is complete as soon as the agreement is formed by two or more culpable persons. There is no turning back from that. Once the offense of conspiracy is complete, abandonment of the criminal plan by one of the parties is not a defense to the crime of conspiracy.

  1. Relevance of Abandonment

Although abandonment, or withdrawal, from a conspiracy is not a defense to prosecution of the crime of conspiracy, a person who withdraws from a conspiracy may avoid conviction for subsequent offenses committed in furtherance of the conspiracy by other members of the conspiracy, if the abandoning party communicates his withdrawal to every other member of the conspiracy (a near impossibility in many-member conspiracies).

  1. Model Penal Code
  2. General Principles
  1. Definition

The MPC provides that “a person is guilty of conspiracy with another person or persons to commit a crime” if that person, “with the purpose of promoting or facilitating” commission of the crime, “agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime,” or if that person agrees to aid the other person or persons in commission of the offense or of an attempt or solicitation to commit such crime.

  1. Grading

A conspiracy to commit any offense other than a felony of the first degree is graded the same as the crime that is the object of the conspiracy.

  1. Merger

Unlike the common law, a conspirator may not be convicted of both conspiracy and the target offense(s), unless the conspiracy involves a continuing course of conduct.

  1. Actus Reus: How It Differs from Common Law
  2. Overt Act

In contrast to the common law, an overt act is required except for felonies of the first and second degree.

  1. Nature of Agreement

In contrast to the common law, the object of the agreement must be a crime, and not merely an “unlawful” act.

3. Mens Rea

A person is not guilty of conspiracy unless she acts with the purpose of promoting or facilitating the commission of the conduct that constitutes a crime. One who furnishes a service or instrumentality with mere knowledge of another’s criminal activities is not guilty of conspiracy.

  1. Plurality Rule

The most influential feature of the MPC is its rejection of the common law plurality requirement. The Code defines the offense in unilateral terms: “A person is guilty of conspiracy with another person . . . [if he] agrees with such other person. . . . ” It takes two people to agree, but it takes only one person to be guilty of conspiracy.

  1. Parties to Agreement

Two aspects of the Code need to be kept in mind in determining the parties to a conspiracy. First, conspiracy is a unilateral offense, as discussed above. Second, the MPC provides that if a person guilty of conspiracy knows that the person with whom he has conspired has, in turn, conspired with another person or persons to commit the same crime, the first person is also guilty of conspiring with the other persons or person, whether or not he knows their identity. See the Main Outline for a discussion of how these provisions work to determine whether a person is party of an existing conspiracy.

  1. Objectives of a Conspiracy

The Code provides that there is only one conspiracy between parties, even if they have multiple criminal objectives, as long as the multiple objectives are part of the same agreement or of a “continuous conspiratorial relationship.”

  1. Special Defenses

The MPC does not recognize Wharton’s Rule, nor any impossibility defense.

  1. Legislative-Exemption Rule

The Code provides that it is a defense to a charge of conspiracy “that if the criminal object were achieved, the actor would not be guilty of a crime under the law defining the offense or as an accomplice.” The effect of this language is to permit a defense if enforcement of the conspiracy law would frustrate a legislative intention to exempt that party from prosecution.

  1. Renunciation of Criminal Purpose

A person is not guilty of conspiracy under the Code if he renounces his criminal purpose, and then thwarts the success of the conspiracy “under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”


  1. General Principles
  1. Definition

At common law, a person is guilty of solicitation if he intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a felony or a misdemeanor involving a breach of the peace or obstruction of justice.

  1. Model Penal Code

The Code definition of “solicitation” is broader than the common law in that it applies to solicitation to commit any misdemeanor (as well as all felonies).

  1. Grading

At common law, a criminal solicitation was a misdemeanor, even when the offense solicited was a felony. Today, a solicitation to commit a felony is usually treated as a felony, but of a lesser degree than the felony solicited.

  1. Model Penal Code

As with other inchoate offenses, the MPC treats a solicitation to commit any offense other than a felony of the first degree as an offense of equal grade as the target offense.

  1. Merger

The concept of merger applies to the crime of solicitation, just as it does to the offense of attempt.

B. Actus Reus

  1. General Rule

The actus reus of a solicitation is consummated when the actor communicates the words or performs the physical act that constitutes the invitation, request, command, or encouragement of the other person to commit an offense.

  1. Unsuccessful Communications

At common law, a solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. In contrast, the Model Penal Code provides that one who unsuccessfully attempts to communicate a solicitation is guilty of solicitation.

  1. Relationship of Solicitor to Solicited Party

At common law, a person is not guilty of solicitation if she merely asks another person to assist in the crime, that is, to be an accomplice in the crime. To be guilty, a solicitor must ask the other person to actually perpetrate the offense herself. In contrast, the MPC provides that a person is guilty of solicitation if she requests the other person to do some act that would establish the latter person’s complicity as an accomplice in the offense.

C. Mens Rea

  1. Common Law

Solicitation is a specific-intent offense at common law. The solicitor must intentionally commit the actus reus (request, encourage, etc., another to commit the crime) with the specific intent that the person solicited commit the target offense.

  1. Model Penal Code

The Model Penal Code does not deal in concepts of “specific intent” and “general intent.” However, the analysis is the same: a person is not guilty of solicitation unless she acts with the purpose of promoting or facilitating the commission of the solicited offense.

  1. Defense: Renunciation

The Model Penal Code—but not the common law—provides a defense to the crime of solicitation if the soliciting party: (1) completely and voluntarily renounces her criminal intent; and (2) persuades the solicited party not to commit the offense or otherwise prevents her from committing the crime.


  1. Assault
    1. Common Law Definition

A common law assault is an attempted battery. (A battery is unlawful application of force to the person of another.) However, the common law recognized “assault” as an offense before criminal attempt law developed, so attempt doctrines do not apply to it. To be guilty of assault, a person must engage in conduct that is in closer proximity to completion than is generally required for other attempt offenses.

  1. Modern Statutes

Nearly all states have broadened the definition of assault to include the tort definition of assault: intentionally placing another person in reasonable apprehension of an imminent battery.

  1. Inchoate Offenses in Disguise
    1. Burglary

Common law burglary involves “breaking and entering the dwelling house of another at night with the intent to commit a felony therein.” Thus, burglary only occurs if a person not only breaks into another person’s dwelling at night, but has the further specific intention to commit a serious crime inside the dwelling. The latter felony is inchoate at the time that the actus reus of burglary (breaking and entering) occurs.

  1. Larceny

Common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal the property, i.e. permanently deprive the other of the property. The ultimate harm of theft comes when the wrongdoer permanently deprives the person of the property. That harm has not occurred at the moment when the thief non-consensually “takes and carries away” the personal property.



  1. General Principles
    1. General Rule

Subject to clarification below, a person is an accomplice in the commission of an offense if she intentionally assists another person to engage in the conduct that constitutes the offense.

  1. Accomplice Liability as Derivative Liability

Accomplice liability is derivative in nature. That is, an accomplice’s liability derives from the primary party to whom she provided assistance. The accomplice is ordinarily convicted of the offense committed by the primary party.

  1. Justification for Derivative Liability

Accomplice liability is loosely based on the civil concept of agency. That is, when a person intentionally assists another person in the commission of an offense, she manifests thereby her willingness to be held accountable for the conduct of the other person, i.e., she allows the perpetrator of the crime to serve as her agent. Essentially, “your acts are my acts.”

  1. Common Law Terminology

There are four common law categories of parties to criminal offenses.

  1. Principal in the First Degree

He is the person who, with the requisite mens rea, personally commits the offense, or who uses an innocent human instrumentality to commit it. The “innocent instrumentality doctrine” provides that a person is a principal in the first degree if she dupes or coerces an innocent human being to perform the acts that constitute an offense.

  1. Principal in the Second Degree

She is the person who intentionally assists the principal in the first degree to commit the offense, and who is actually or constructively present during its commission. A person is “constructively” present if she is close enough to assist the principal in the first degree during the crime.

  1. Accessory Before the Fact

She is one who intentionally assists in the commission of the offense, but who is not actually or constructively present during its commission.

  1. Accessory After the Fact

She is one who knowingly assists a felon to avoid arrest, trial, or conviction.

  1. What Makes a Person an Accomplice: Assistance

A person “assists” in an offense, and thus may be an accomplice in its commission, if she solicits or encourages another person to commit the crime, or if she aids in its commission.

  1. If No Assistance
    • person is not an accomplice unless her conduct in fact assists in commission of the crime.
  2. Trivial Assistance

If a person intentionally aids in the commission of an offense, she is liable as an accomplice, although her assistance was trivial. Indeed, an accomplice is liable even if the crime would have occurred without her assistance, i.e., she is guilty although her assistance did not cause the commission of the offense. Because any actual assistance, no matter how trivial, qualifies, a person may be an accomplice merely by providing psychological encouragement to the perpetrator.

  1. Presence at the Scene
    • person who is present at the scene of a crime, even if she is present in order to aid in commission of the offense, is not an accomplice unless she in fact assists in the crime. Although “mere presence” does not constitute assistance, it does not take much to convert presence into trivial assistance. In some circumstances, a person’s presence could provide psychological encouragement to the principal, which is enough to trigger accomplice liability.
  2. Omissions

Although a person is not generally an accomplice if she simply permits a crime to occur, one may be an accomplice by failing to act to prevent a crime when she has a duty to so act.

  1. What Makes a Person an Accomplice: Mens Rea
    1. Rule
      • person is an accomplice in the commission of an offense if she possesses two mental states. She must: (1) intentionally engage in the acts of assistance; and (2) act with the level of culpability required in the definition of the offense in which she assisted.
    2. Crimes of Recklessness or Negligence

The prosecutor does not have to prove that the accomplice intended a crime of recklessness to occur: it is enough that she was reckless in regard to the ensuing harm; as for a crime of negligence, it is enough to show that the would-be accomplice was negligent in regard to the ensuring harm.

  1. Natural-And-Probable-Consequences Doctrine

An accomplice is guilty not only of the offense she intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person whom she aided. That is, once the prosecutor proves that A was an accomplice of P in the commission of Crime 1 (using the analysis discussed so far), A is also responsible for any other offense committed by P that was a natural and probable consequence of Crime 1.

  1. Accomplice Liability: If the Perpetrator Is Acquitted
    1. If No Crime Occurred

If a jury finds that the alleged crime never occurred and, therefore, acquits the principal in the first degree, it logically follows that any accomplice must be acquitted as well, as there is no guilt to derive one cannot be an accomplice to a nonexistent crime.

  1. If Perpetrator Is Acquitted on Grounds of a Defense

If a jury acquits the alleged perpetrator of a crime on the ground that he was justified in his actions, then the accomplice should also be acquitted, as this means she aided in a justified (proper) act. But, if the jury acquits the perpetrator on the ground of an excuse, the jury has determined that a crime has occurred. The perpetrator’s excuse claim is personal to him, and should not protect the accomplice.

  1. Perpetrator and Accomplice: Degrees of Guilt

The common law rule used to be that an accessory before the fact could not be convicted of a more serious offense, or a higher degree of an offense, than that for which the principal was convicted. (It has nearly always been the case that an accomplice may be convicted of a lesser degree of crime than the principal in the first degree.) This rule is breaking down. Even in an earlier era, however, most courts treated criminal homicides differently: on the proper facts, courts were and are prepared to convict an accomplice of a higher degree of criminal homicide than the perpetrator.

  1. Special Defense: Legislative-Exemption Rule

A person may not be convicted as an accomplice in her own victimization.


  1. The Pinkerton Doctrine

At common law, a person may be held accountable for the actions of others either as an accomplice, discussed above, or as a conspirator. A controversial feature of conspiracy law in many jurisdictions is the Pinkerton doctrine, named after the Supreme Court ruling in Pinkerton v. United States. This doctrine provides that a conspirator is responsible for any crime committed by any other member of the conspiracy, whether or not he assisted, if the offense falls within the scope of the conspiracy or a reasonably foreseeable consequence thereof.


  1. Forms of Complicity Liability
  2. Innocent-Instrumentality Doctrine
    • person is guilty of an offense that she did not personally commit if, acting with the requisite mens rea, she “causes an innocent or irresponsible person” to commit the crime. This is equivalent to the common law innocent-instrumentality rule discussed earlier.
  3. Accomplice Liability
    • person is guilty of an offense that she did not personally commit if she is an accomplice of another person in the commission of the offense.

3. Pinkerton Rule

The Pinkerton conspiracy doctrine discussed above is not recognized in the Code.

  1. What Makes a Person an Accomplice: Assistance
    1. Rule

To be an accomplice in the commission of an offense, the person must: (a) solicit the offense; (b) aid, agree to aid, or attempt to aid in its commission; or (c) fail to make a proper effort to prevent commission of the offense (assuming that she has a legal duty to act). See the Main Outline for a comparison of the MPC to the common law.

  1. What Makes a Person an Accomplice: Mens Rea
    1. Rule

To be an accomplice, the person must act “with the purpose of promoting or facilitating the commission of the offense.”

  1. Exception to the Requirement of Purpose

The MPC handles the issue of accomplice liability for a crime of recklessness or negligence with the following provision: A person who is an accomplice in the commission of conduct that causes a criminal result, is also an accomplice in the result thereof, if she has the level of culpability regarding the result required in the definition of the offense.

See the Main Outline for an example of how this provision works.

  1. Accomplice Liability: If the Perpetrator Is Acquitted

The Code provides that an accomplice in the commission of an offense may be convicted of that offense, even if the alleged perpetrator “has been convicted of a different offense or degree of offense or . . . or has been acquitted.” One must be very careful in reading this provision: if there has been no offense, then one is not an accomplice “in the commission of the offense.”

  1. Special Defenses
    1. Legislative-Exemption Rule

Like the common law, the MPC applies the legislative-exemption rule.

  1. Inevitable Incidence

An accomplice is not guilty of an offense if her conduct is an inevitable incident to the commission of the offense, such as a customer in the act of prostitution.

  1. Abandonment

A person is not an accomplice in the commission of a crime if she terminates her participation before the crime is committed, and if she either neutralizes her assistance, gives timely warning to the police of the impending offense, or in some other manner prevents commission of the crime.

  1. Special Provision to Consider. Relationship of Accomplice Liability to

Criminal Attempts

The Code goes well beyond the common law by permitting an accomplice to be convicted of a criminal attempt, if she attempts to aid in commission of an offense, although the other person does not commit or even attempt the offense.




Civil Procedure



Most courses, and this outline, approach the seamless web of civil procedure by (1) presenting in survey fashion the whole subject of the conduct of litigation and then (2) studying a series of fundamental problems inherent therein.

    1. Nature of Civil Procedure

Civil procedure concerns the society’s noncriminal process for submitting and resolving factual and legal disputes over the rights and duties recognized by substantive law, which rights and duties concern primary conduct in the private and public life that transpires essentially outside the courthouse or other forum. In shaping this law of civil procedure, the shapers—constitutions, legislatures, courts, and litigants—observe both outcome and process values.

  1. Content of Civil Procedure

Turbulent policies and misleadingly concrete rules constitute the law of civil procedure. One underlying theme is that our society has generally opted to dispense justice by adjudication involving an adversary system wherein the parties are represented by advocates.

  1. History of Civil Procedure
    1. English Roots

The old English system had two distinct sets of courts, procedure, remedies, and substantive law.

  1. Common Law
  2. Equity
  1. State Developments

The American states basically followed the English model until the code reforms of the 19th century, beginning with the Field Code in 1848.

  1. Federal Developments

The federal legal system followed traditional ways from 1789 until well into the 20th century, which saw the Rules Enabling Act of 1934 and the Federal Rules of Civil Procedure in 1938.


    1. Federal Focus

This capsule summary of Part Two focuses on federal practice.

  1. Selecting a Court with Authority to Adjudicate

First, plaintiff must select a court with subject-matter jurisdiction and territorial authority to adjudicate. He commences a federal lawsuit by filing a complaint with the selected federal district court. Rule 3. Second, the persons whose interests are to be affected must receive adequate notice.

This usually is achieved by service of process. Rule 4.

    1. Pleading Stage

This stage is usually short in duration and seldom determinative in effect.

  1. General Rules
    1. Purposes of Pleadings

Federal pleading is primarily notice pleading.

  1. Form of Pleadings

The formal requirements—from caption to signing—are quite lenient.

  1. Contents of Pleadings

Pleadings should be simple, direct, and brief. The pleader should carry his burden of allegation, without pleading irrelevancies or detail.

  1. Flexibility of Pleadings

Alternative and inconsistent pleading is permissible, and there is liberal joinder of claims and parties.

  1. Governing Law

In any federal action, federal law governs the mechanics of pleadings, as well as most of the other mechanics of civil procedure.

  1. Steps in Pleading Stage
    1. Complaint

Rule 8(a) requires (1) a jurisdictional allegation, (2) “a short and plain statement of the claim,” and (3) a demand for judgment.

  1. Motion and/or Answer

To avoid default, defendant must under Rule 12(a) make a timely response, such as (1) pre-answer objections by motion for a more definite statement and by motion to strike, (2) disfavored defenses under Rule 12(b)(2)–(5) by pre-answer motion or answer, (3) defenses on the merits by including denials and affirmative defenses in the answer, (4) favored defenses under Rule 12(b)(6) and (7) by motion and answer, and (5) the subject-matter jurisdiction defense under Rule 12(b)(1) by raising it in any fashion. This scheme leaves considerable room for tactics; but Rule 12(g) and (h) imposes complicated consolidation and waiver prescriptions.

  1. Motion, Reply, and/or Answer

Usually plaintiff does not respond to an answer. However, there is the significant requirement that plaintiff make a timely response to any counterclaim denominated as such in the defendant’s answer.

  1. Amendments

There are liberal provisions for amending the pleadings, either by amendment as a matter of course within certain time limits or by amendment later with written consent of the adversary or with leave of court. Rule 15(a). The court freely gives leave “when justice so requires,” and amendments are possible at or after trial. Rule 15(c) provides that the effective date of a nondrastic amendment is the date of the original pleading.

  1. Disclosure

In 1993, amid much controversy, the rulemakers introduced a new stage called disclosure.

  1. Purposes

Disclosure aims at achieving some savings in time and expense by automatically getting certain core information on the table, and also at moderating litigants’ adversary behavior in the pretrial phase.

  1. Scope

Parties must disclose (1) at the outset, favorable occurrence witnesses and documents, as well as insurance coverage, (2) at a specified time, identity of any expert who may be called at trial, along with a detailed expert report, and (3) shortly before trial, trial witness lists and the like regarding nonimpeachment evidence.

  1. Mechanics

Disclosure is meant to proceed in an atmosphere of cooperation. A key feature is the requirement in Rule 26(f) that the litigants confer early, before discovery proceeds, to consider the case, the disclosures, and a discovery plan.

  1. Problems

The swirling controversy arises from doubts that the benefits of overlaying a system of disclosure can match its costs.

  1. Discovery

The pivotal feature of the federal procedural system is the availability of a significant discovery stage.

  1. General Rules
    1. Purposes of Discovery

Discovery allows a party to expand on the notice given by the pleadings and any disclosures and to prepare for disposition of the case.

  1. Scope of Discovery

The scope is very wide, extending to any matter that is “relevant” and that is “nonprivileged.” Rule 26(b)(1). Additional provisions restrict discovery of work product, treat discovery of expert information and electronically stored information, and permit control of discovery on a case-by-case basis.

  1. Mechanics of Discovery

Discovery is meant to work almost wholly by action of the parties, without intervention by the court. Nevertheless, to remedy abuse, the respondent or any party may seek a protective order. Rule 26(c). Alternatively, to remedy recalcitrance, the discovering party may go to court to obtain an order compelling discovery and then a sanction. Rule 37.

  1. Problems of Discovery

Serious questions persist on whether the benefits of discovery outweigh its costs, and on how to control those costs.

  1. Specific Devices

There are six major types of discovery devices:

  • oral depositions;
  • written depositions;
  • interrogatories;
  • production of documents and such; (5) physical and mental examination; and (6) requests for admission.
  1. Pretrial Conference

Judicially supervised conferences (1) help move the case through the pretrial process and toward trial and (2) focus the case after the skeletal pleading stage and the dispersive effects of disclosure and discovery. The pretrial procedure of Rule 16 was traditionally rather loose, but recent amendments have embraced the notion of judicial case management.

  1. Purposes

A pretrial conference allows the court and the litigants to confer generally about the case, so moving it along to disposition and molding it for trial.

  1. Procedural Incidents

The court may direct the attorneys and unrepresented parties to appear before it for one or more pretrial conferences. There is no uniform practice, but pretrial conferences should usually be voluntary in tone and relatively simple, flexible, and informal in format.

  1. Order

After a pretrial conference, the court must enter a binding but amendable order reciting the action taken.

  1. Other Steps

Other procedural steps can be taken in the pretrial period, and not necessarily in any fixed order.

  1. Provisional Remedies

The claimant may seek temporary relief to protect himself from loss or injury while his action is pending.

  1. Seizure of Property

Rule 64 incorporates state law on seizure of property, which law typically provides such remedies as attachment and garnishment to ensure that assets will still be there to satisfy any eventual judgment.

  1. Injunctive Relief

Rule 65 governs the stopgap temporary restraining order, which can be granted without a hearing and sometimes even without notice, and the preliminary injunction, which can be granted only after notice and hearing.

  1. Summary Judgment and Other Steps That Avoid Trial Most often trial is ultimately avoided, either by a motion attacking the pleadings or more likely by one of the following steps.
    1. Summary Judgment

Rule 56 is an important and broadly available device by which any party may without trial obtain a summary judgment on all or part of any claim, if he is “entitled to judgment as a matter of law” and if “there is no genuine issue as to any material fact.” The party may move on the pleadings alone, or use other factual materials to pierce the pleadings. In determining whether there is a genuine issue as to any fact, the court construes all factual matters in the light reasonably most favorable to the party opposing the motion and then asks whether reasonable minds could differ.

  1. Other Steps That Avoid Trial

There are four other steps that may avoid trial:

  • voluntary dismissal;
  • involuntary dismissal;
  • default; and
  1. Masters and Magistrate Judges

Another possible step involves referring the case to one of these “parajudges.”

  1. TRIAL
  2. Scenario

Trial follows a relatively settled order, although trial practice is largely confided to the trial judge’s discretion. Assume for the following that there is a federal jury trial, although a nonjury trial has a basically similar scenario.

  1. Plaintiff’s Case

Ordinarily, plaintiff and then defendant make opening statements. Plaintiff then presents his evidence on all elements with respect to which he bears the initial burden of production.

  1. Motions

When plaintiff rests, defendant may move for judgment as a matter of law under Rule 50(a).

  1. Defendant’s Case

If the trial has not been short-circuited by the granting of judgment as a matter of law, defendant may present her evidence.

  1. Motions

When defendant rests, plaintiff may move for judgment as a matter of law. There can be further stages of rebuttal, rejoinder, and so on. When both sides finally rest at the close of all the evidence, either side may move for judgment as a matter of law. As usual, this can be granted if, looking only at all the evidence that is favorable to the opponent of the motion but not incredible and also the unquestionable evidence that is favorable to the movant, the judge believes that a reasonable jury could not find for the opponent.

  1. Submission of Case

If the trial still has not been short-circuited by judgment as a matter of law, the parties usually make closing arguments, with plaintiff ordinarily speaking first and last. After and/or before closing arguments, the judge gives oral instructions to the jury. Then, the jury retires to reach a verdict.

  1. Motions

Two motions are available to change the outcome of the trial, but these motions must be filed no later than 10 days after entry of judgment. First, a renewed motion for judgment as a matter of law under Rule 50(b) asks to have the adverse verdict and any judgment thereon set aside and to have judgment entered in the movant’s favor. The movant must have earlier moved for judgment as a matter of law under Rule 50(a). The standard for the renewed motion is the same as that for the original motion. Second, a motion for a new trial under Rule 59(a) asks to have the adverse verdict and any judgment thereon set aside and to hold a new trial to prevent injustice. This can be granted if, looking at all the evidence, the judge is clearly convinced that the jury was in error. It can also be granted on such grounds as error by the judge or misconduct by the participants in the course of the trial or on the ground of newly discovered evidence.

  1. Jury and Judge

Many of the complications of trial practice result from the presence of a jury and its interaction with the judge.

  1. Trial by Jury
    1. Formal Characteristics of a Jury

A federal civil jury normally has 6 to 12 members acting unanimously.

  1. Selection of a Jury

By an elaborate process including the judge’s voir dire examination and the parties’ challenges, an impartial and qualified trial jury is selected.

  1. Right to Trial by Jury

Upon timely written demand of any party, there will be trial by jury on those contested factual issues:

  • that are triable of right by a jury under the Seventh Amendment to the Federal Constitution, which is read expansively and includes at least any issue arising in a case such that the issue would have been triable of right to a common-law jury in 1791; or
  • that are triable of right by a jury under some federal statute.

Also, the court, in its discretion with the consent of both parties, can order a trial by jury under Rule 39(c)(2).

  1. State Practice

State jury practice is widely similar to federal. However, the Seventh Amendment and its expansive reading do not apply to the states.

  1. Judicial Controls

Federal practice, unlike that of some states, leans toward maximizing judicial control of the jury.

    1. Entry of Judgment

Rule 58 requires prompt entry of a judgment as the formal expression of the outcome of federal litigation.

  1. Kinds of Relief
    1. Coercive Relief

Courts in their judgments generally can give active relief that the government will enforce.

  1. Legal Relief

There can be an award to the prevailing party of damages, restoration of property, and costs.

  1. Equitable Relief

There can be an order to defendant to do or not to do something, as by an injunction or an order of specific performance.

  1. Declaratory Relief

Courts generally can give passive relief that declares legal relationships, as in an action for declaratory judgment.

  1. Enforcement of Judgment
    1. Legal Coercive Relief

The usual tool for enforcing a legal-type judgment is a writ of execution.

  1. Equitable Coercive Relief

The usual tool for enforcing an equitable-type judgment is the court’s contempt power.

  1. Relief from Judgment

Relief from judgment, other than in the ordinary course of review in the trial and appellate courts, is available in narrow circumstances of extraordinary harm.

    1. Appealability
      1. Routes to Court of Appeals

The basic jurisdictional rule is that only final decisions of a district court are appealable to the appropriate court of appeals, but the courts and Congress have created a series of exceptions.

  1. Final Decisions

This final decision rule appears in 28 U.S.C.A. § 1291. However, there are masked exceptions in (1) such judge-made doctrines as the collateral order doctrine of the Cohen case, (2) the ad hoc approach of the Gillespie case, and (3) the treatment of complex litigation in Rule 54(b).

  1. Interlocutory Decisions

There are also explicit exceptions that directly allow immediate review of avowedly interlocutory decisions in (1) 28 U.S.C.A. § 1292(a), which allows appeal of decisions concerning preliminary injunctions and of other specified decisions, (2) 28 U.S.C.A. § 1651(a), which allows review by mandamus, (3) 28 U.S.C.A. § 1292(b), which allows appeal if the district court and the court of appeals so agree, and (4) 28 U.S.C.A. § 1292(e), which authorizes Federal Rule 23(f) on appeal from class-action certification orders.

  1. Routes to Supreme Court

Under 28 U.S.C.A. § 1254, there are two routes from the court of appeals to the Supreme Court. The usual route is by certiorari, which is a matter of the Court’s discretion and not of right; but there is also the slim possibility of certification.

  1. Reviewability
  2. Standards of Review

The appellate court applies one of three degrees of scrutiny to reviewable issues.

  1. Nondeferential Review

The appellate court makes a virtually fresh determination of questions of law.

  1. Middle–Tier Review

The appellate court shows deference to fact-findings by a judge in a nonjury trial and to discretionary rulings, affirming unless it is clearly convinced there was error.

  1. Highly Restricted Review

The appellate court will overturn only in the most extreme situations a decision denying a new trial motion based on the weight of the evidence.

  1. Appellate Procedure

Appeal does not entail a retrial of the case, but a rather academic reconsideration of the reviewable issues in search of prejudicial error.



  1. Introduction to Subject–Matter Jurisdiction

For a court properly to undertake a civil adjudication, the court must have, under applicable constitutional and statutory provisions, authority to adjudicate the type of controversy before the court—that is, it must have jurisdiction over the subject matter.

  1. State Courts

A state may organize its judicial branch as it wishes. A state has considerable freedom in allocating jurisdiction to its courts of original and appellate jurisdiction, subject to occasional federal statutes excluding state courts from certain subject areas.

  1. General Versus Limited Jurisdiction

Typically, a state’s courts of original jurisdiction include one set of courts of general jurisdiction, which can hear any type of action not specifically prohibited to them, and several sets of courts of limited jurisdiction, which can hear only those types of actions specifically consigned to them.

  1. Exclusive Versus Concurrent Jurisdiction

A great number of cases can be heard only in state courts. For some other cases, the federal and state courts have concurrent jurisdiction. A few types of cases are restricted by federal statute to the exclusive jurisdiction of the federal courts.

  1. Federal Courts

Article III of the Federal Constitution establishes the Supreme Court, and Articles I and III give Congress the power to establish lower federal courts as it sees fit. The result is a number of federal courts, including the basic pyramid of 91 district courts, 13 courts of appeals, and the Supreme Court. These federal courts are courts of limited jurisdiction. Accordingly, for a case to come within the jurisdiction of a federal court, the case normally must fall (1) within a federal statute bestowing jurisdiction on the court and (2) within the outer bounds of federal jurisdiction marked by Article III and the Eleventh Amendment.

  1. Federal Questions

As the most important example of federal subject-matter jurisdiction, the district courts have original jurisdiction over cases arising under the Constitution, federal statutory or common law, or treaties.

  1. Constitutional Provision

Article III extends the federal judicial power to such “arising under” cases, and it has been broadly read to embrace all cases that include a federal “ingredient.”

  1. Statutory Provisions

Congress has acted under the constitutional provision to vest federal question jurisdiction in the district courts:

  • the general provision in 28 U.S.C.A. § 1331 uses the key constitutional words, but it has been narrowly read to require an adequate federal element that would appear on the face of a well-pleaded complaint stating a federal claim that is not insubstantial; and
  • there is a string of special federal question statutes, applicable to special subject areas, that might avoid some of the restrictions read into § 1331, might impose other restrictions, or might make the jurisdiction exclusive.
  1. Diversity of Citizenship

For another example, the district courts have original jurisdiction over cases that are between parties of diverse citizenship, usually provided that they satisfy a jurisdictional amount requirement.

  1. Constitutional Provision

Article III extends the federal judicial power to such diversity cases, and it has been broadly read to require only “partial diversity.”

  1. Statutory Provisions

Congress has acted under the constitutional provision to vest diversity jurisdiction in the district courts:

  • the general provision in 28 U.S.C.A. § 1332(a) bestows jurisdiction only in certain cases of “complete diversity” where the matter in controversy exceeds $75,000; and
  • there are a few special statutes such as 28 U.S.C.A. § 1335 bestowing jurisdiction for interpleader actions involving partial diversity where the amount in controversy equals or exceeds $500.
  1. Jurisdictional Amount

Jurisdictional amount requirements, intended to keep petty controversies out of the federal courts but very complicated to apply, are of statutory origin.

  1. Removal

Congress has provided for removal of specified cases within the federal judicial power from a state trial court to the local federal district court. The basic statute is 28 U.S.C.A. § 1441, which most importantly allows all defendants together promptly to remove any civil action against them that is within the district courts’ original jurisdiction—subject to certain exceptions, such as the prohibition of removal of a case not founded on a federal question if any served defendant is a citizen of the forum state.

  1. Supplemental Jurisdiction

The courts generally read the Constitution and the jurisdictional statutes to permit the district courts when desirable to hear state claims that were related to pending federal claims. Now Congress has codified this doctrine in 28 U.S.C.A. § 1367.

  2. Introduction to Territorial Authority to Adjudicate

For a court properly to undertake a civil adjudication, the court must have authority to hear the case despite any nonlocal elements in the case—that is, it must have territorial authority to adjudicate.

  1. Territorial Jurisdiction and Venue

These two types of restrictions on the place of litigation together constitute the concept of territorial authority to adjudicate.

  1. Current Due Process Doctrine

The principal limitation on territorial authority to adjudicate is the federal due process provision, which under the World-WideVolkswagen case now requires the categorization of the action and then the application of both the power and the unreasonableness tests.

  1. Categorization

First the action must be categorized in terms of the target of the action, be it a person or some kind of thing.

  1. Jurisdictional Tests

Then it must be determined whether (1) the forum has power over the target (“minimum contacts”) and (2) litigating the action there would be unreasonable in light of all interests (“fair play and substantial justice”).

  1. Future Due Process Doctrine

Several commentators argue that the due process doctrine should evolve toward directly applying only a reasonableness test, as was done in the Mullane case.

  1. Application of Current Due Process Doctrine First categorize the action.
    1. In Personam

For personal jurisdiction, there must be power over the individual or corporate defendant, and the exercise of jurisdiction must not be unreasonable. There are several recognized bases of power:

  • General Jurisdiction. Both presence and domicile of defendant give power to adjudicate any personal claim.
  • Specific Jurisdiction. The lesser contacts of consent and certain forum-directed acts (such as sufficiently substantial tortious acts, business activity, acts related to property, and litigating acts) by defendant give power to adjudicate only those personal claims related to the contacts.
  1. In Rem
    1. Pure In Rem

Jurisdiction in rem can result in a judgment affecting the interests of all persons in a designated thing. To satisfy the power test, such an action normally must be brought where the thing is. Unreasonableness will then be the key test.

  1. Jurisdiction over Status

This subtype of jurisdiction can result in a judgment establishing or terminating a status. To satisfy the power test, such an action must be brought in a place to which one party in the relationship has a significant connection. The exercise of jurisdiction must not be unreasonable.

  1. Quasi In Rem
    1. Subtype One

This variety of jurisdiction quasi in rem can result in a judgment affecting only the interests of particular persons in a designated thing, and may be invoked by a plaintiff seeking to establish a pre-existing interest in the thing as against the defendant’s interest. To satisfy the power test, such an action normally must be brought where the thing is. Unreasonableness will then be the key test.

  1. Subtype Two

This variety of jurisdiction quasi in rem can result in a judgment affecting only the interests of particular persons in a designated thing, and may be invoked by a plaintiff seeking to apply the defendant’s property to the satisfaction of a claim against defendant that is unrelated to the property. To satisfy the power test, such an action normally must be brought where the thing is. Unreasonableness will then be the key test, but is here so difficult to satisfy that such jurisdiction is available only in rather special situations.

  1. Other Limitations on Territorial Authority to Adjudicate
    1. Limits on State Trial Courts
      1. Federal Law

The principal federal limitation on state-court territorial authority to adjudicate is the already described Due Process Clause of the Fourteenth Amendment.

  1. International Law

International law imposes no significant additional restrictions on state-court territorial authority to adjudicate.

  1. State Law

First, state constitution, statute, or decision may further limit state-court territorial jurisdiction, such as by a restricted longarm statute or the doctrine of forum non conveniens. Second, related to these limits are state venue restrictions, which most often are defined as those requirements of territorial authority to adjudicate that specify as proper fora only certain courts within a state having territorial jurisdiction, but which would be better defined as those requirements of territorial authority to adjudicate that are not founded on the Federal Constitution.

  1. Agreements Among Parties

The parties generally may, by agreement, restrict any potential litigation to one or more courts.

  1. Limits on Federal District Courts
  1. Federal Law

First, the principal constitutional limitation on a federal court’s territorial jurisdiction is the Due Process Clause of the Fifth Amendment. The variety of federal statutes and Rules treating service of process further limits federal-court territorial jurisdiction. The federal courts have also developed a number of limiting doctrines, such as immunity from service of process. Second, related to all these limits are federal venue restrictions, which most often are defined as those requirements of territorial authority to adjudicate that are not linked to service provisions, but which would be better defined as those requirements of territorial authority to adjudicate that are not founded on the Federal Constitution.

  1. International Law

International law imposes no significant additional restrictions on federal-court territorial authority to adjudicate.

  1. State Law

State jurisdictional limits frequently apply in federal court through the federal service provisions, most often because the applicable federal provision incorporates that state law.

  1. Agreements Among Parties

The parties generally may, by agreement, restrict any potential litigation to one or more courts.

    1. Introduction to Notice

For a court properly to undertake a civil adjudication, the persons whose property or liberty interests are to be significantly affected must receive adequate notice.

  1. Constitutional Requirement
    1. General Rule

For any adjudication, due process requires fair notice of the pendency of the action to the affected person or her representative. Most importantly, fair notice must be either (1) actual notice or (2) notice that is reasonably calculated to result in actual notice.

  1. Notice Before Seizing Property

Due process also requires certain procedural protections before governmental action may unduly impair a person’s property interest.

  1. Nonconstitutional Requirements

The provisions for service of process further specify the manner of giving notice. Local law may strictly enforce some of these nonconstitutional requirements for giving notice, but today the trend is toward ignoring irregularities (1) where there was actual notice received or (2) where the form of the notice and the manner of transmitting it substantially complied with the prescribed procedure.

  1. Contractual Waiver of Protections

By voluntary, intelligent, and knowing act, a person may waive in advance all these procedural protections.

    1. Procedure for Raising
      1. Subject–Matter Jurisdiction

Satisfaction of this requirement is open to challenge throughout the ordinary course of the initial action.

  1. Territorial Authority to Adjudicate and Notice

In the initial action the key for defendant is to raise these personal defenses in a way that avoids waiving them.

  1. Special Appearance

This is the procedural technique by which defendant can effectively raise these defenses. Defendant must be very careful to follow precisely the required procedural steps of a special appearance. In federal court, a “special appearance” comes in the form of a Rule 12(b)(2)–(5) defense.

  1. Limited Appearance

To be sharply distinguished from a special appearance is this procedural technique by which defendant restricts her appearance to defending a nonpersonal action on the merits, without submitting to personal jurisdiction.

  1. Consequences of Raising
    1. Subject–Matter Jurisdiction
      • finding in the ordinary course of the initial action of the existenceof subject-matter jurisdiction is res judicata, precluding the parties from attacking the resultant judgment on that ground in subsequent litigation—except in special circumstances.
    2. Territorial Authority to Adjudicate and Notice
      • finding in the ordinary course of the initial action of the existenceof territorial authority to adjudicate or adequate notice is res judicata, precluding the appearing parties from attacking the resultant judgment on either ground in subsequent litigation.
    3. Consequences of Not Raising
      1. Litigated Action
        1. Subject–Matter Jurisdiction

Unraised subject-matter jurisdiction in a litigated action is later treated as res judicata.

  1. Territorial Authority to Adjudicate and Notice By failing properly to raise any such threshold defense, an appearing defendant waives
  1. Complete Default
    1. Subject–Matter Jurisdiction

In case of complete default, a party usually may later obtain relief from judgment on the ground of lack of subject-matter jurisdiction.

  1. Territorial Authority to Adjudicate and Notice

A defaulting party usually may later obtain relief from judgment on the ground of an important defect in territorial authority to adjudicate or notice.


    1. Historical Note

Historically, there has been a general movement in our legal systems toward more broadly requiring joinder of multiple claims and parties and toward permitting even more extensive joinder.

  1. Federal Focus

This capsule summary of Part Four focuses on federal practice.

  1. Governing Law

In any federal action, federal law governs joinder.

  1. Federal Joinder Rules

The critical provisions are Rules 13–14, 17–24, and 42.

  1. Jurisdiction and Venue

Each claim against a particular party must satisfy the federal requirements of subject-matter jurisdiction, territorial jurisdiction, and venue. Especially relevant here, however, are the ameliorating doctrines of supplemental jurisdiction and ancillary venue.

  1. Abuses

Efficiency and fairness demand that there be techniques to compel joinder, as well as means to simplify the structure of a case.

  1. Defenses of Nonjoinder and Misjoinder

A party can raise by the defense of nonjoinder the opposing pleader’s violation of the minimal rules of compulsory joinder, and can raise by the defense of misjoinder the opposing pleader’s violation of the very liberal bounds on permissive joinder.

  1. Judicial Power to Combine and Divide

Even where the pleaders have initially formulated a proper case in that wide area between the limits of compulsory and permissive joinder, the court may reshape the litigation for efficient and fair disposition. The court may expand the case by ordering either a joint trial or consolidation of separate actions pending before it and involving a common question of law or fact, or may contract the case by ordering either a separate trial or severance of individual claims against particular parties.

    1. Compulsory Joinder

Requirements are quite limited concerning what additional claims must be joined in the parties’ pleadings.

  1. Claim Preclusion

Res judicata does not require a party to join separate claims against his opponent, but it generally does in effect require him to put any asserted claim entirely before the court. This requirement follows from the rule that the eventual judgment will preclude later suit on any part of that whole claim, which is defined in transactional terms.

  1. Compulsory Counterclaims

Analogously, Rule 13(a) generally requires a defending party to put forward any claim that she has against any opposing party, if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Failure to assert such a counterclaim will preclude subsequently suing thereon.

  1. Permissive Joinder

Permissiveness is almost unbounded concerning what additional claims may be joined in the parties’ pleadings.

  1. Parallel Claims

Rule 18(a) says that any party “asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.”

  1. Permissive Counterclaims

Analogously, Rule 13(b) permits a defending party to assert any claim that she has against an opposing party.

  1. Crossclaims

Rule 13(g) permits, but does not compel, a party to assert a transactionally related claim against another party who is not yet in an opposing posture.



  1. General Joinder Provisions
    1. Compulsory Joinder

Rule 19 governs what persons must be joined when any party pleads a claim other than a class action.

  1. Necessary Parties

Rule 19(a) specifies those persons who are so closely connected to an action that they must be joined, unless joinder is not feasible under the requirements of jurisdiction and venue.

  1. Indispensable Parties

Rule 19(b) guides the court in deciding whether to dismiss an action on the ground of the absence of a necessary party who cannot be joined because of the restrictions of jurisdiction and venue.

  1. Procedure

All persons joined pursuant to Rule 19 are normally brought in as defendants.

  1. Permissive Joinder

The subject of “proper parties” controls what persons may be joined when any party pleads a claim, and that subject entails three relevant limitations.

  1. Rule 20

This Rule permits certain related plaintiffs to join together to sue, and also permits plaintiff to join certain related defendants.

  1. Real Party in Interest

Rule 17(a) requires every claim to be prosecuted only in the name of “real parties in interest,” who are the persons entitled under applicable substantive law to enforce the right sued upon.

  1. Capacity

Rule 17(b) and (c) imposes the further and separate limitation of “capacity” to sue or be sued, which comprises the personal qualifications legally needed by a person to litigate.

  1. Special Joinder Devices

Five major devices expand the scope of permissive joinder beyond Rule


  1. Impleader

Impleader allows a defending party (as third-party plaintiff) to assert a claim against a nonparty (as third-party defendant) who is or may contingently be liable to that party for all or part of a claim already made against that party. Rule 14.

  1. Interpleader

Interpleader allows a person (as stakeholder) to avoid the risk of multiple liability by requiring two or more persons with actual or prospective claims against him to assert their respective adverse claims in a single action.

  1. Procedure

The stakeholder can invoke interpleader by an original action or by counterclaim, whether or not the stakeholder claims part or all of the stake.

  1. Kinds of Interpleader There are two kinds:
    • Rule Interpleader. Rule 22(a) governs this kind, subject to the normal restrictions of jurisdiction and venue.
    • Statutory Interpleader. An alternative lies in 28 U.S.C.A. §§ 1335, 2361, and 1397, which provide specially permissive limits on jurisdiction and venue.
  2. Class Action

A class action allows one or more members of a class of similarly situated persons to sue, or be sued, as representative parties litigating on behalf of the other class members without actually bringing them into court. Rule 23. However, to justify such efficiency and substantive goals, the essential due process requirement of adequate representation must be met.

  1. Requirements

The proposed class action must (1) meet the four initial requirements that Rule 23(a) imposes, (2) fall into one of the three situations specified in Rule 23(b), and (3) satisfy the requirements of jurisdiction and venue.

  1. Mechanics

Class actions pose major management problems for the courts, accounting for the special management provisions in Rule


  1. Termination

Class actions also pose major settlement problems, accounting for the special notice and court approval provisions in Rule


  1. State Practice

States have their own class-action provisions, of lesser or greater scope and detail.

  1. Shareholders’ Derivative Action

A derivative action allows one or more persons to sue for the benefit of similarly situated persons on a claim that their common fiduciary refuses to assert. Rule 23.1 deals specifically with derivative actions by shareholders of a corporation or by members of an unincorporated association.

  1. Intervention

Intervention allows a person not named as a party to enter an existing lawsuit, coming in on the appropriate side of the litigation. Rule 24(a) governs intervention of right by closely connected persons, and Rule 24(b) governs permissive intervention by other persons.




  • pervasive problem in litigation that involves nonlocal elements is choosingwhich sovereign’s law to apply.
  1. Techniques

Generally, it is the forum court’s task to choose the governing law for each issue by using some technique for choice of law, such as interest analysis.

  1. Constitutional Limits

Constitutionally, courts have a very free hand in choosing the governing law.

    • special choice-of-law problem frequently encountered in our federalsystem is the choice between state and federal law.
  1. State Law in Federal Court: Erie
    1. Constitutional Limits

The Federal Constitution can dictate a choice in favor of federal law applicable in federal court, as it has done in the Seventh Amendment’s guarantee of trial by jury. Conversely, the Constitution requires the application of state law in areas of extremely high state interest, such as title to real estate. However, these relatively rare and easy cases of constitutionally mandated choice of law are of limited practical significance. Usually, the Constitution does not directly enter into solving a state-federal choice-of-law problem.

  1. Legislative Limits

Within constitutional limits, Congress can make the choice between state and federal law, and its choice will bind the federal courts. Indeed, the Rules of Decision Act of 1789 looks as if Congress has broadly made a choice in favor of state law, but that statute is generally read to preserve judicial choice-of-law power.

  1. Choice–of–Law Technique

In the absence of constitutional and congressional directive, how then should a federal court choose between state and federal law for application to a particular issue in a case before it?

  1. Competing Methodologies

Since 1938 the Supreme Court has progressed through a sequence of choice-of-law techniques for the federal courts to use in handling that problem:

  • Erie Decision. The fountainhead vaguely offered a discussion of relevant policies.
  • Substance/Procedure Test. Next came this crude and mechanical technique.
  • Outcome-determinative Test. The Guaranty Trust case eventually led to this other crude and mechanical technique.
  • Interest Analysis. The Byrd case developed this sensitive and flexible, but obviously uncertain, approach.
  • Hanna Formulas. This case both requires the application of valid Federal Rules in all federal actions and also establishes a refined outcome-determinative test for use outside the realm of the Federal Rules.

Thus, the Court has not yet arrived at any truly clear or optimal solution. In its latest attempt in Gasperini, it seems to have rejected certainty in favor of ad hoc balancing of state and federal interests.

  1. Erie Precepts

Regardless of the choice-of-law technique adopted, the federal courts observe three precepts:

  • the choice-of-law technique applies issue-by-issue in each case, so the type of subject-matter jurisdiction does not fix state or federal law as applicable to all issues in the case;
  • the Klaxon rule says that for matters governed by state law under Erie, the forum state’s conflicts law tells which state’s law governs; and
  • to determine the content of state law where it is unclear, the federal court should fabricate state law as if it were then sitting as the forum state’s highest court.
  1. Federal Law in Federal Court

Under this whole scheme, federal law frequently applies in federal court. When it is left to the federal courts to formulate the content of that federal law, the result is called federal common law. Often the federal courts perform this task by adopting state law as the federal common law.

  1. Federal Law in State Court: Reverse–Erie
    1. Constitutional Limits

As in the Erie setting, the Federal Constitution can dictate a choice in favor of federal law applicable in state court. Conversely, the Constitution requires the application of state law in areas of high state interest.

  1. Legislative Limits

Within constitutional limits, Congress can make the choice between state and federal law, and its choice will bind the courts.

  1. Choice–of–Law Technique

In the absence of constitutional and congressional directive, the state courts and ultimately the Supreme Court must decide whether state or federal law applies in state court by employing a federally mandated choice-of-law technique similar to the Erie technique.

  1. Summary

In areas of clear state “substantive” concern, state law governs in both state and federal courts. As one moves into “procedural” areas, state law tends to govern in state court and federal law tends to govern in federal court. Finally, as one moves into areas of clear federal “substantive” concern, federal law governs in both state and federal courts.



  1. Introduction to Former Adjudication

The subject here is the impact of a previously rendered judgment in subsequent civil litigation.

  1. Modern Focus

This capsule summary of Part Six focuses on the modern approach to res judicata.

  1. Rules

The centrally important doctrine of res judicata has two main branches:

  • Claim Preclusion. Outside the context of the initial action, a party generally may not relitigate a claim decided therein by a valid and final judgment. If that judgment was for plaintiff, merger If instead that judgment was for defendant, bar applies.
  • Issue Preclusion. Outside the context of the initial action, a party generally may not relitigate any issue actually litigated and determined therein if the determination was essential to a valid and final judgment. If the two actions were on the same claim, direct estoppel If the two actions were on different claims, collateral estoppel applies.
  1. Comparisons and Contrasts

Res judicata should be distinguished from:

  • stare decisis;
  • law of the case;
  • former recovery;
  • estoppel; and
  • election of remedies.
  1. Rationale of Res Judicata

Efficiency and fairness demand that there be an end to litigation.

  1. Application of Res Judicata
    1. Raising the Doctrine

The person wishing to rely on res judicata must affirmatively raise it. It can be so raised only after the prior judgment was rendered, and outside the context of the initial action (and any appeal).

  1. Conditions for Application: Validity and Finality

For a judgment to have res judicata effects, it must be “valid” and


  1. Validity

To be treated as valid, the judgment must withstand any attack in the form of a request for relief from judgment.

  1. Finality

An adjudication can be treated as a final judgment for issue preclusion at an earlier stage than for claim preclusion.

    1. Requirements of Claim Preclusion

Claim preclusion prohibits repetitive litigation of the same claim. The modern view is that a “claim” includes all rights of plaintiff to remedies against defendant with respect to the transaction from which the action arose.

  1. Exceptions to Claim Preclusion

Predictably, this broad conception of claim preclusion has generated several significant exceptions, such as where there was:

  • a jurisdictional or procedural impediment to presenting the entire claim;
  • a party agreement to claim-splitting;
  • judicial permission to split a claim; or
  • an adjudication on one of those grounds labeled “not on the merits.”
  1. Counterclaims
    • Interposition of Counterclaim
      • defendant who asserts a counterclaim is generally treated, withrespect to that claim, as a plaintiff under the normal rules of claim preclusion.
    • Failure to Interpose Counterclaim
      • defendant who does not assert a counterclaim is unaffected byclaim preclusion with respect to that claim, unless that claim (1) falls within a compulsory counterclaim statute or rule or (2) constitutes a common-law compulsory counterclaim.
      1. Requirements of Issue Preclusion

Where claim preclusion does not apply, issue preclusion acts to prevent relitigation of essential issues. There are three requirements.

  • Same Issue
  • Actually Litigated and Determined
  • Essential to Judgment
  1. Exceptions to Issue Preclusion

Courts apply issue preclusion quite flexibly by invoking many exceptions, such as where, in certain circumstances: (1) an issue of law is involved;

  • the initial court was an inferior court;
  • there is a change in the burden of persuasion; (4) there was an inability to appeal in the initial action; or (5) the application of issue preclusion was unforeseeable.
  1. Multiple Issues
    • Cumulative Determinations

If several issues in a case were litigated and determined, each is precluded provided that its determination was essential to judgment.

  • Ambiguous Determinations

If one cannot tell which of several possible issues was determined in a case, then none is precluded.

  • Alternative Determinations

If the adjudicator determined several issues in a case and each of those determinations without the others sufficed to support the judgment, then some authorities say that none by itself is precluded unless it was affirmed on appeal.


Special attention must be given to the res judicata effects of special kinds of judgment when used in subsequent civil litigation.

  1. Nonpersonal Judgments
    • Pure In Rem
    • Jurisdiction over Status
    • Quasi In Rem—Subtype One
    • Quasi In Rem—Subtype Two
  2. Noncoercive Judgments

The subject here is declaratory judgment, which has limited claimpreclusion effects but normal issue-preclusion effects.

  1. Nonjudicial or Noncivil Proceedings
    • Administrative Adjudication
    • Arbitration Award
    • Criminal Judgment
    1. Privies

Certain nonparties to an action are in certain circumstances subjected to generally the same rules of res judicata as are the former parties, the basis for this treatment being some sort of representational relationship between former party and nonparty. These nonparties are then labeled “privies.”

  1. Strangers

A person who had nothing to do with a judgment might benefit from its res judicata effects, but good policy dictates that the judgment cannot bind such a person who is neither party nor privy. The most important example of the possible benefits is that, mutuality of estoppel having been rejected, the stranger may sometimes use the prior judgment for collateral estoppel against a former party.

    1. General Rules

Special attention must be given to the treatment a judgment should receive in subsequent civil litigation in another judicial system.

  1. Recognition

A court will “recognize,” or give effect under the doctrine of res judicata to, a nondomestic judgment that is valid and final. The applicable law on recognition generally is the law of the judgmentrendering sovereign.

  1. Enforcement

The second court will enforce a judgment entitled to recognition. The applicable law on method of enforcement generally is the law of the enforcing court’s sovereign, which might provide for an action upon the judgment or registration of the judgment.

  1. Judgments of American Courts

The Federal Constitution and federal legislation make these rules for handling a nondomestic judgment in large part obligatory on American courts when that judgment comes from another American court.

  1. Judgments of Foreign Nations

American courts treat judgments of foreign nations pretty much like American judgments, although their approach to such foreign judgments is more flexible because their respect generally flows from comity rather than from legal obligation.




1. Objective Theory of Contracts

Mutual assent is ordinarily arrived at by an offer and acceptance. Under the objective theory, whether there is assent is determined by asking whether a reasonable person in the position of one party would believe that the words and conduct of the other party constituted assent. This is usually a question of fact for the trier of fact. However, if reasonable persons can reach only one reasonable conclusion, it is a question of law for the court.

2. Intending Legal Consequence

The parties needn’t intend to be legally bound, but if the objective evidence makes it clear that they do not intend to be bound there is no contract.

3. Intent to Formalize Agreement

If the parties reach basic agreement on a transaction but agree that they will not be bound unless and until they sign a formal agreement, they will not be bound until that time. If they intend the future writing to be merely a convenient memorial of their prior agreement, they are bound whether or not such a writing is executed. Intent is often a question of fact.


What Constitutes an Offer?

An offer is a promise to do or to refrain from doing some specified thing in the future if the offeree will do something in exchange. To amount to an offer, the promise must justify the other party, as a reasonable person, to conclude that his or her assent is invited and will conclude the process of offer and acceptance. It is possible, but very unusual, to have a non-promissory offer.

What Is a Promise?

A promise is a manifestation of intent that gives an assurance (commitment) that a thing will or will not be done.

Offer Distinguished From Preliminary Negotiations

Preliminary negotiations are any communications prior to an operative offer. Expressions of opinion, statements of intention, hope or desire, inquiries or invitations to make offers, catalogs, circular letters, invitations to make bids, and price quotations are not offers. An advertisement for the sale of goods is ordinarily not an offer. In an auction sale, the bidder is deemed to be the offeror. The situation is more complex in an auction without reserve.

Distinction Between Offers to Unilateral and Bilateral Contracts An offer to a unilateral contract asks for a performance; an offer looking to a bilateral contract invites a promise. The promise may be expressed in words or communicated by conduct. An offer to a unilateral contract may not be accepted by a promise. Conversely, an offer to a bilateral contract may not, except under an unimportant exception, be accepted by performance. The offeree does not become bound when starting to perform the act requested by an offer looking to a unilateral contract, but the offeror is bound by an option contract.


1. Relationship to Offer

The offer creates a power of acceptance. The acceptance creates a contract and terminates the power of revocation that the offeror ordinarily has. The acceptance must be a voluntary act.

2. Acceptance by Authorized Party

An offer may be accepted only by the person or persons to whom it is made. Thus, the offeree may not transfer (assign) the power of acceptance to another. But an irrevocable offer may be transferred if the transfer is consistent with the rules governing the assignment of contracts.

3. Knowledge of Offer

If an offer is to a unilateral contract, the offeree must know of the offer in order to accept. If the offer looks to a bilateral contract, the rule that the offeree must know of the offer may come into conflict with the objective theory of contracts. If so, the objective theory prevails.

4. Intent to Accept

For a unilateral contract to arise, the traditional rule is that the offeree must subjectively intend to accept. The offer need not, however, be the principal inducement for performing the act. The Restatement (Second) has substituted a more objective test; an intent to accept is presumed unless the offeree disclaims an intent to accept. An offeree to a bilateral contract can accept even if he or she has no subjective intent to accept; all that is required is an outward manifestation of intent to contract.

5. Necessity for Communication of Acceptance

To create a bilateral contract, the offeree’s promise must be communicated to the offeror or the offeror’s agent. However, the offeror may dispense with the need for communication by manifesting such an intent. At times, a reasonable attempt to communicate is sufficient. (See 11 below).

6. Necessity of Notice in Unilateral Contract

There are three views on the issue of whether the offeree must give notice of performance to the offeror. (1) Notice is not required unless requested by the offer. (2) If the offeree has reason to know that the offeror has no adequate means of learning of performance with reasonable promptness and certitude, failure to exercise reasonable diligence in giving notice discharges the offeror from liability, unless the offeror otherwise learns of performance within a reasonable time or the offeror expressly or by implication indicates that notification is not necessary. (3) The third view is the same as the second view except that no contract is consummated unless and until notice of performance has been sent. The second view is the prevailing view and is the view of both the first and second restatements.

  1. Acceptance of an Offer Looking to a Series of ContractsIf an offer looks to a series of contracts, a contract arises each time the offeree accepts. As to the future, the offer is revocable unless the offer is irrevocable. Whether an offer looks to one or a series of acceptances is a question to be determined

under the reasonable person test. Care must be taken to distinguish an offer looking to a series of acceptances from an offer looking to one acceptance with a number of performances.

8. Acceptance by Silence

The general rule is that silence ordinarily does not give rise to an acceptance of an offer or a counteroffer. This rule does not apply: (1) Where the offeror has given the offeree reason to believe silence will act as an acceptance and the offeree intends by silence to accept; (2) Where the parties have mutually agreed that silence will operate as consent; (3) Where there is a course of dealing so that silence has come to mean assent; (4) Where the offeree accepts services with reasonable opportunity to reject them, and should reasonably understand that they are offered with expectation of payment. This illustrates a non-promissory offer.

9. Acceptance by Act of Dominion

At times, an offeree takes possession of offered goods but indicates that the offered terms are not acceptable. This conduct constitutes the tort of conversion—the wrongful act of dominion over the personal property of another. Because the conduct could have been rightful and referable to the offered terms, the offeror has the option to treat the conduct as rightful, suing on a contract theory and estopping the offeree from claiming to be a wrongdoer. There is some authority, however, to the effect that this option is not available if the offered terms are manifestly unreasonable.

10. Unsolicited Sending of Goods

An exception exists to the exercise-of-dominion rule under legislation providing that a person who receives unsolicited goods may treat them as a gift.

  1. When Is an Acceptance in a Bilateral Contract Effective (Mailbox Rule)? When the parties are at a distance from one another, is an acceptance effective when put out of the possession of the offeree or when it is received? This depends upon whether the method of acceptance is appropriate or not. If the medium of communication is reasonable, the acceptance will be effective when sent and even if it is lost or delayed. It is likely to be reasonable if it is the same medium used by the offeror (unless the offeror specified otherwise) or it is customary in similar transactions at the time and place the offer is received. However a communication will not be effective when sent if proper care has not been taken in transmitting it (e.g. incorrectly addressed). Under the Restatement (Second), even if an unreasonable means is used or care is not taken in transmission, the acceptance nonetheless will be effective when sent, provided it is received within the time a seasonably dispatched acceptance sent in a reasonable manner would normally have arrived.

12. Prescribed Method of Acceptance

If the offer prescribes an exclusive method of acceptance, no contract arises if the offeree utilizes another means of acceptance even if the acceptance comes to the attention of the offeror. This is a qualification of the rules stated above.

13. Parties in the Presence of One Another

Contrary to the rule for parties at a distance, when the parties are in the presence of one another, an acceptance is inoperative unless the offeror hears or is at fault in not hearing. Even if the offeror is at fault in not hearing, there is no contract if the offeree knows or has reason to know that the offeror has not heard.

14. Offeror’s Power to Negate Mailbox Rule

An offeror may negate the mailbox rule by providing in the offer that the acceptance will be effective only when and if received.

15. Withdrawal of Acceptance

Even if the offeree is able to regain possession of the letter pursuant to postal regulations, the letter of acceptance is effective.

  1. When Offeree Sends a Rejection First and Then an Acceptance An acceptance dispatched after a rejection has been sent is not effective until received and then only if received prior to the rejection.

17. When Offeree Sends Acceptance First but Rejection Is Received Before Acceptance

The usual holding is that a contract is formed, but if the offeror relies on the rejection before receiving the acceptance, the offeree will be estopped from enforcing the agreement.

18. Risk of Mistake in Transmission by an Intermediary

The mistake discussed here is not made by a party or an agent, but by an intermediary; e.g. a telegraph company. Lost messages are governed by the mailbox rule and the present discussion has nothing to do with them. The topic has to do with a message that is received but is garbled or otherwise incorrectly transmitted. The majority view is that the message as transmitted is operative unless the other party knows or has reason to know of the mistake. The minority view is to the effect that there is no contract if the offer or acceptance is not the message authorized by the party.


A revocable offer may be terminated in a variety of ways.

1. Lapse of Time

An offer is terminated after the lapse of time specified in the offer. Usually this time is measured from the time the offer is received. If no time is specified, the offer is open for a reasonable time.

a. Face to Face Offer

Where an offer is made in any situation where there are direct negotiations (e.g. face to face, telephone) the offer is deemed, in the absence of a manifestation of a contrary intention, to be open only while the parties are conversing.

b. Termination Upon Happening of a Particular Event

If the offeror stipulates that the offer shall terminate upon the happening of a certain event and the event occurs before acceptance, the power of acceptance is terminated.

c. Effect of a Late Acceptance

There are three views with respect to a late acceptance. (1) The late acceptance is an offer which in turn can be accepted only by a communicated acceptance. (2) The original offeror may treat the late acceptance as an acceptance by unilaterally waiving the lateness. (3) If the late acceptance is sent in what could plausibly be considered to be a reasonable time, the original offeror has a duty to so inform the offeree within a reasonable time. Failure to do so creates a contract by silence.

2. Death of Offeror

If the offeror dies between the making of the offer and the acceptance, the offer is terminated even if the offeree is unaware of the offeror’s death. Under a minority view, death terminates the offer only if the offeror is aware of it.

  1. Incapacity of Offeror

a. Adjudication of Incapacity

Where there is an adjudication of mental incapacity and the property of the offeror is placed under guardianship, any unaccepted offer made by the offeror is terminated. This is so, according to the majority view, even though the offeree is unaware of what has occurred.

b. Where There Is No Adjudication

If there is no adjudication of incompetency, the rule is that supervening mental incapacity in fact terminates the offer if the offeree is or should be aware of the incapacity.

  1. Death or Incapacity of the Offeree

The death or adjudication of incapacity of the offeree terminates the offer.

  1. Revocation

a. Direct Revocation

A communicated revocation terminates the offeree’s power of acceptance and is effective when it is received except in a few states where statutes provide that it is effective on dispatch. At common law, even if the offer says it is irrevocable, it is still revocable unless consideration or the equivalent is given for the promise of irrevocability.

b. Equal Publication

When an offer is made to a number of persons whose identity is unknown to the offeror (e.g. a reward offer in a newspaper), the offer can be revoked by giving equal publication of the revocation as was given to the offer. Even here, if the offeror knows of the identity of a person who is taking action on the offer, the offeror must communicate the revocation to that person.

c. Indirect Revocation

Indirect revocation occurs when the offeree acquires reliable information from a third party that the offeror has engaged in conduct that would indicate to a reasonable person that the offeror no longer wishes to make the offer. Information is reliable only if it comes from a reliable source and is in fact true.

d. Special Rules Relating to the Revocation of an Offer Looking to a Unilateral Contract

There are three views with respect to the revocation of an offer looking to a unilateral contract. (1) The traditional rule is that the offer can be revoked at any time until the moment of complete performance. (2) A bilateral contract is formed upon the beginning of performance. (3) The prevailing view is that once the offeree starts to perform, the offer becomes irrevocable. (An irrevocable offer is synonymous with an option contract). This rule requires the actual beginning or tender of performance and not merely preparation. Extensive preparation for performance might, however, trigger a finding of promissory estoppel.

6. Death or Destruction

Death or destruction of a person or thing essential for the performance of the offered contract terminates the offer.

7. Supervening Illegality

If, between the making of the offer and the acceptance, a change of law or regulations renders the proposed contract illegal, the offer is terminated.

  1. Rejection or Counter–Offer

a. Common Law

An offeree’s power of acceptance is terminated by a rejection or a counter-offer unless the offeror or the offeree manifests a contrary intention.

b. Nature of a Rejection or Counter–Offer

A rejection is a statement by the offeree that he or she does not wish to accept the offer. A rejection is effective when it is received. A counteroffer is a response to the offer that adds qualifications or conditions. A counter-offer acts as a rejection even if the qualification or condition relates to a trivial matter (ribbon matching, or mirror-image, rule). A counter-offer, in turn, can be accepted.

  1. Counter–Offer Distinguished From Other Communications A counter-offer must be distinguished from a counter-inquiry, a comment upon the terms, a request for a modification of the offer, an acceptance coupled with a request for a modification of the contract, a grumbling assent that falls short of dissent, an acceptance plus a separate offer, and a future acceptance. If an acceptance contains a term that is not expressly stated in the offer but is implied therein there is an acceptance and not a counter-offer.

d. UCC § 2–207

This section is designed to negate the mirror image rule in cases involving the sale of goods. Under the UCC a definite and seasonable expression of acceptance . . . operates as an acceptance even though it states terms additional to or different from those offered, . . . unless acceptance is expressly made conditional on assent to the additional or different terms. Despite the apparent simplicity of this section, it has created quicksand-like divisions of authority.

e. Additional Terms

If there is an effective acceptance under UCC § 2–207(1), under UCC § 2–207(2) additional terms in the acceptance are treated as proposals for addition to the contract. If the parties are both merchants, the additional terms become part of the contract unless (1) the offer expressly limits acceptance to the terms of the offer; (2) the additional terms would materially alter the contract; or (3) the offeror notifies the offeree in advance or within a reasonable time that he or she objects to the additional terms. If the either party is a non-merchant, the additional terms are discarded.

f. Different Terms

The UCC does not state a specific rule for different terms so it is difficult to know how they should be treated. A different term is one that clashes with a term of the offer. The emerging trend is to hold that different terms knock each other out.

g. Conduct of Parties

Even though a contract is not formed by the communications of the parties, a contract may arise by the conduct of the parties under subsection 3 of UCC § 2–207. In such a case, the terms of the contract are those upon which the parties agree plus terms incorporated under other UCC provisions.


  1. What Makes an Offer Irrevocable?

An offer can be made irrevocable (1) by consideration; (2) by statute; (3) under one of the special rules relating to the revocation of a unilateral contract (see above); (4) under the doctrine of promissory estoppel (see below); and (5) by virtue of a sealed instrument.

2. Statute

Article 2 of the CC empowers an offeror to create an irrevocable offer without consideration. The requisites are: (1) a signed writing; (2) language assuring that the offer will be held open; (3) the offeror must be a merchant; (4) the period of irrevocability may not exceed three months; and (5) if the language of irrevocability appears on the offeree’s form it must be separately signed by the offeror.

3. Terms Are Synonymous

For the most part, the terms irrevocable offer and option contract are synonymous. An option contract is an offer that is also binds the offer to a contract that the offer cannot be revoked.

4. Termination of Irrevocable Offers

Irrevocable offers are terminated by: (1) lapse of time; (2) death or destruction of a person or thing essential for the performance of the offered contract; or

(3) supervening legal prohibition. They are not terminated by: (1) revocation, (2) death or supervening incapacity of the offeror or the offeree, or (3) rejection.

  1. When Is the Acceptance of an Irrevocable Offer Effective?

Contrary to the mailbox rule employed for acceptances of revocable offers, an acceptance of an irrevocable offer is effective when received.

F. UCC § 2–206

1. Introduction

This section de-emphasizes the common law distinction between a unilateral and a bilateral contract. It also has made changes in the mailbox rule, the rule that is referred to as the unilateral contract trick and the rules on the effect of part performance.

2. Distinction Between a Unilateral and Bilateral Contract

In classic contract law, except in unusual cases, the offer looked either to a unilateral or a bilateral contract. If the offer was unclear as to the manner in which it should be accepted, it was presumed that the offer invited a promise. UCC § 2–206 has substituted for this common-law presumption the notion that in the vast majority of cases the offeror is indifferent as to the manner of acceptance. This approach is illustrated in subsection (1)(b) which states: an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance by a prompt promise to ship or by prompt or current shipment of the goods. The offeror, however, still has to power to clearly insist upon a particular manner of acceptance.

3. The Mailbox Rule

The mailbox rule used to state that the acceptance of an offer to a bilateral contract (e.g., by a letter) is effective when it is put out of the possession of the offeree provided it is sent in an authorized manner. The UCC substitutes the words by any manner reasonable in the circumstances for the word authorized. The concept of reasonableness is intended to be more flexible than the concept of an authorized means of transmission. This provision of the UCC has become general law, finding its way into the Restatement (Second) and the case law.

4. Beginning of Performance

Under UCC § 2–206, where the beginning of performance is a reasonable mode of acceptance, the offeree is bound when the offeree starts to perform, provided that the beginning of performance unambiguously expresses the offeree’s intention to engage himself. Even though the offeree is bound, the offeror is not bound to perform unless notice of beginning performance is given within a reasonable time. If timely notice is not given, the offeror, even though not bound to perform, may waive the lack of notice and hold the offeree to the contract. The basic notion is that the offeror is not bound unless notified, but the offeree is bound on beginning performance.

5. Restatement (Second)

The Restatement (Second), follows the lead of UCC § 2–206 with some variations. Section 2–206 relates only to contracts for the sale of goods. The Restatement (Second) relates to all types of contracts.


  1. Common Law

a. Introduction

Even though the parties have gone through a process of offer and acceptance so that there is mutual assent, the agreement is void if the content of their agreement is unduly uncertain.

b. Rule

The offer must be so definite as to its material terms or require such definite terms in the acceptance that the promises and the performances to be rendered by each party are reasonably certain.

  1. What Are Material Terms?

Material terms include subject matter, price, payment terms, quantity, quality, duration, and the work to be done. Given the infinite variety of contracts, it is obvious that no precise definition can be stated. Indefiniteness as to an immaterial term is not fatal.

d. Reasonable Certainty

To be reasonably certain, a term need not be set forth with optimal specificity. It is enough that the agreement is sufficiently explicit so that the court can perceive the parties’ respective obligations. What is reasonably certain depends on subject matter, the purposes and relationship of the parties, and the circumstances under which the agreement was made.

e. Types of Indefiniteness Problems

  • Where the parties have purported to agree upon a material term but have left it indefinite (not reasonably certain) there is no room for implication and the agreement is void.
  • Where the parties are silent as to a material term or discuss it but do not purport to agree upon it, it is possible that the indefiniteness can be cured through the use of a gap-filler or from external sources including standard terms, usage, course of dealing and, according to some cases, by evidence of subjective intention. A gap-filler is a term supplied by the court because it thinks that the parties would have agreed upon this term if it had been brought to their attention, or because it is a term which comports with community standards of fairness.
  • Where the parties agree to agree as to a material term, under the traditional rule, the agreement is fatally indefinite and the gap-filling mechanism, discussed above, may not be used. Some of the more modern cases (even without relying on the UCC and the Restatement (Second), discussed below), have abandoned this rule and some have held that there is a duty to negotiate in good faith even though there is no such provision in the agreement. The UCC and the Restatement (Second) are generally in accord with the modern view on questions of agreement to agree.
  • Indefiniteness may be cured by the subsequent conduct or agreement of the parties.
  1. Uniform Commercial Code

a. Introduction

The provisions of the Uniform Commercial Code relating to indefiniteness are of two types. There is a very important general provision and there are provisions relating to specific problems which can be generally categorized under the heading of gap-fillers.

b. Specific Gap–Fillers

The Code has specific provisions that supply reasonable terms in various circumstances. These include price, time for delivery, place of delivery, shipment, payment, duration of contract, and specification of assortment.

c. General Provision

Even if one or more terms are left open, a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. (UCC § 2–204(3)). The test is not certainty as to what the parties were to do nor as to the exact amount of damages due to the plaintiff. Rather, commercial standards on the issue of indefiniteness are to be applied.

d. Discussion of General Provision

This provision is designed to prevent, where it is at all possible, a contracting party who is dissatisfied with the bargain from taking refuge in the doctrine of indefiniteness to wriggle out of a contract. This section is designed to change the traditional common law approaches. Thus, a gap-filler would be available even though the parties purported to agree upon a term or made an agreement to agree with respect to it. But the section goes beyond gap-fillers and permits a court to use any reasonably certain basis for giving an appropriate remedy.

e. Questions of Fact and Law

Whether the parties intended to contract is a question of fact. Whether there is a reasonably certain basis for giving an appropriate remedy is a question of law.

  1. Restatement (Second)

a. Compared to UCC

The Restatement is in general accord with the Uniform Commercial Code, but Article 2 of the UCC applies only to a contract for the sale of goods. (Sometimes it is applied to other types of contracts by analogy.) The Restatement (Second) applies to all types of contracts.

  1. Trend

The trend is toward the rules of the UCC and the Restatement (Second).



1. What Promises Should Be Enforced

Gratuitous promises—promises not supported by consideration—are not enforced, but such promises may be enforced under the doctrine of promissory estoppel or under certain statutes. In addition, in certain instances a moral obligation may make a promise enforceable. A delivered sealed instrument is enforceable without consideration but this rule has been changed in most states by statutes including the UCC.


1.  In General

For a promise to be supported by consideration (and therefore be enforceable), two elements must concur. (a) The promisee must suffer legal detriment— that is do or promise to do what the promisee is not legally obligated to do, or refrain from doing or promise to refrain from doing what the promisee is legally privileged to do. (b) The detriment must be bargained for.

2. Legal Benefit to Promisor

The rule above is stated in terms of legal detriment incurred by the promisee. Often, however, it is phrased in terms of either legal detriment to the promisee or legal benefit to the promisor. Because the result is invariably the same, the discussion here will be in terms of legal detriment.

  1. Must Detriment Be Suffered by Promisee?

Although the rule is stated in terms of a legal detriment suffered by the promisee, it is nonetheless well settled that it does not matter from whom or to whom the detriment moves so long as it is bargained for and given in exchange for the promise.

4. Detriment Must Induce Promise

The promisor must have manifested an offering state of mind rather than a gift making state of mind. If the promisor manifests a gift making state of mind, any detriment has not induced the promise. Therefore, a promise to make a gift is not enforceable. Note that the promisor need only exchange the promise in part for the detriment to be suffered.

5. Past Consideration

Past consideration is not consideration because one does not make an exchange for something that has already occurred.

6. Motive

A promisor’s motive in making a promise is not related to the question of detriment, but the motive of the promisor in making the promise is relevant on the issue of exchange.

7. Adequacy of Detriment

Any detriment no matter how small or how economically inadequate will support a promise provided that the detriment is in fact bargained for. But economic inadequacy may constitute some circumstantial evidence of fraud, duress, overreaching, undue influence, mistake or that the detriment was not in fact bargained for. Adequacy of the detriment may also be considered under the doctrine of unconscionability.

8. Sham Consideration

Where an instrument falsely recites that a consideration has been given, the consideration is sham. The majority view is that such a recital does not make a promise enforceable. There is a contrary view that relates only to option contracts and credit guaranties.

9. Nominal (Token) Consideration

Where the parties actually exchange or promise to exchange a peppercorn or small sum for the promise because they have learned that a gratuitous problem is not enforceable, the issue is whether nominal or token consideration will bind the promise. They have attempted to make the promise enforceable by cloaking a gratuitous promise with the form of a bargain. One view is that the promise should not be enforced because the alleged bargain is a pretense. There is also a contrary view. The overwhelming majority of the cases involve option contracts in which the use of nominal (token) consideration has generally been upheld. Where the promise is basically a promise to make a gift, it is unlikely to be upheld.

10. Invalid Claims

There are a number of views on the issue of whether the surrender of or forbearance to assert an invalid claim is detriment. (1) The earliest and now obsolete view is that the surrender of an invalid claim does not constitute detriment. (2) The surrender of the invalid claim serves as detriment if the claimant has asserted it in good faith and a reasonable person would believe that the claim was well founded. (3) Still other courts have held that the only requirement is good faith. (4) The new Restatement takes the position that either good faith or objective uncertainty as to the validity of the claim is sufficient. Caveat: This discussion only considers whether the surrender of an invalid claim constitutes detriment. If it does, one must still confront the question of whether this is what is bargained for. For example, in a particular case is the promisor bargaining for the surrender of an invalid claim or the surrender of a worthless piece of paper? This presents a factual question.


1. Pre–Existing Duty and Promises

A party who does or promises to do only what the party is legally obligated to do is not suffering a legal detriment because the party is not surrendering a legal right. The problem arises in three types of fact patterns. First, the rule applies even if the duty is imposed by law rather than by contract. Second, where the parties to a contract modify an existing agreement and one party does not suffer new detriment, usually the modification is not enforced, but there are cases that, on a wide variety of theories, have enforced such a modification. For example, The Restatement (Second) upholds such a modification if it is fair and equitable in view of circumstances not anticipated when the contract is made. Third, where an outsider promises to compensate a party bound by a contract to perform a pre-existing duty under a contract, there are two views. (a) The promise is not enforceable; (b) the promise is enforceable because there is less likelihood of coercion in the three party cases.

  1. Pre–Existing Duty and Accord and Satisfaction—Foakes v. Beer The rule of Foakes v. Beer is that part payment by the debtor of an amount here and now undisputedly due is not detriment to support a promise by the creditor to discharge the entire amount. The rule of Foakes v. Beer is another application of the pre-existing duty rule; the debtor, in making the part payment, is only performing part of a legal obligation. This rule is followed by the majority of jurisdictions with some exceptions in particular fact patterns. A minority of jurisdictions have rejected the rule completely. The rule does not apply if there is a detriment, in addition to the part payment, that is in fact bargained for.

a. Liquidated and Unliquidated Claims

The rule of Foakes v. Beer applies only to liquidated claims; that is, claims that are undisputed as to their existence and where the amount due has been agreed upon or can be precisely determined. If there is a dispute as to liability or to the amount due or some other question, the claim is unliquidated even if a party’s assertion is incorrect, provided that the assertion is made in good faith and, according to some jurisdictions, if it is reasonably asserted (see Invalid Claims, supra).

b. Analyzing an Accord and Satisfaction

When a question of accord and satisfaction is presented, the analysis should be divided into three parts. (1) Have the parties gone through a process of offer and acceptance? The rule relating to an offer of accord is that the offeror must make it clear that the offeror seeks a total discharge, otherwise any payment made and accepted will be treated as a part payment. (2) Has the accord been carried out? (3) Is there consideration to support the accord and satisfaction?

  1. UCC Inroads on Pre–Existing Duty Rule

a. UCC § 2–209(1)

Under subsection 1, a modification of a contract is binding without consideration even if it is oral, but in two instances a writing is required.

A writing is required under subsection 3 if the contract as modified is within the Statute of Frauds provision of the UCC (discussed below). The second situation where a writing is required is under subsection 2.

b. UCC § 2–209(2)

At common law, if a contract provides that it cannot be modified or rescinded except in writing, an oral modification is nonetheless binding. Under this subsection such a provision will be honored. A modification (or rescission) will be enforced (except as stated below) only if the modifying agreement is in a signed writing. If the form containing the provision is prepared by a merchant, a non-merchant will be bound by it only if this provision is separately signed.

c. UCC § 2–209(4) & (5)

If a signed writing is required under the provisions of subsections 2 and 3, and the modifying agreement is not in a signed writing, it may nevertheless be enforced if there has been performance under the modifying agreement. Subsection 5 provides that, despite performance, a party as to the unperformed part may reinstate the original agreement unless to do so would be unjust in view of a material change of position as a result of reliance upon the modification.

d. Bad Faith and Duress

UCC § 2–209 also changes the common law rule with respect to duress. The traditional common law rule is that a threat to breach a contract does not constitute duress (see below). But under this provision of the UCC the extortion of a modification without a legitimate commercial reason is ineffective as a violation of the good faith provisions of the Code. Conversely, a modification based upon a legitimate commercial reason does not constitute duress unless undue coercion is applied. Nor, under this provision, can a mere technical consideration support a modification extracted in bad faith.

e. Release (UCC § 1–107)

The pre-existing duty concept, together with the weakening of the power of the sealed instrument, led to the rule that a release of a duty is ordinarily ineffectual without consideration. Section 1–107 of the UCC provides, however, that any claim of right arising out of an alleged breach can be discharged in whole or in part by a written waiver or renunciation signed and delivered by the aggrieved party. Under this section, a written signed and delivered release will be effective to discharge an alleged breach in whole or in part even though the release is not supported by consideration. Section 1–306 of the revision is in accord, but does not require delivery.


  1. Is One Promise Consideration for the Other?

A promise in a bilateral contract is consideration for the counter-promise only if the performance that is promised would be consideration.

  1. Mutuality of Obligation

a. Introduction

The doctrine of mutuality of obligation is commonly, but inaccurately, expressed in the phrase that in a bilateral contract both parties must be bound or neither is bound. The doctrine is, however, really one of mutuality of consideration. The point is that if B’s promise is not consideration B may not enforce A’s promise. Conversely A may not enforce B’s promise even though A’s promised performance is consideration.

  1. Unilateral Contracts

The doctrine of mutuality does not apply to unilateral contracts.

c. Voidable and Unenforceable Promises

The doctrine of mutuality does not apply to a voidable or unenforceable promise because a voidable or unenforceable promise is consideration for a counter-promise.

d. Illusory Promises

An illusory promise is an expression cloaked in promissory terms but which, upon closer examination, reveals that the promisor has made no commitment. The modern decisional tendency is against finding a promise to be illusory and in general against defeating agreements on the technical ground of lack of mutuality. One method of circumventing the illusory promise problem is by interpolating into an agreement that otherwise seems illusory the requirement of good faith and/or reasonableness.

e. Right to Terminate in Contract

If a party reserves the right to terminate the arrangement by giving notice at any time or without giving notice at all, the older cases held that the party was not suffering detriment. The later cases lean to the view that there is detriment in giving notice. When the provision is for termination without notice, these cases ignore the provision by a process of interpretation and require reasonable notice. UCC § 2–309(3) has a provision that bears on this problem. It states, “Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.”

f. Conditional Promises

If a condition is attached to a promise, it does not render a promise illusory if the condition is outside the control of the party who makes it, or if it relates to an event that is outside of the promisor’s unfettered discretion. At times an illusory promise problem is avoided by treating the express language of condition as carrying with it an implied promise to use reasonable efforts to bring about the happening of the condition.

g. Aleatory Promises

A promise is aleatory if it is conditional on the happening of a fortuitous event, or an event supposed by the parties to be fortuitous. An aleatory promise is not illusory, because the condition is based upon an event outside of the control of either party.

h. Consideration Supplied by Implied Promise

At times, a party has made what amounts to an illusory promise, but the entire fact pattern shows that a commercially serious transaction is contemplated. In such a case a court may infer a promise (e.g. to use reasonable efforts) to eliminate the illusory promise problem. Sometimes, the promise inferred is called an implied promise. At other times, it is referred to as a constructive promise. Whichever label is attached the result is the same.

i. UCC § 2–306(2)

This section provides: a lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to promote their sale. While this section is about more than consideration, it imposes the kind of obligation that courts have sometimes inferred. See h above.

j. Agreement Allowing Party to Supply Material Term

If a bilateral agreement permits a party to supply a material term, the promise at common law sometimes was deemed to be illusory and, therefore, the bilateral agreement void under the mutuality doctrine. The UCC, with its insistence on good faith, changes the common law rule relating to the right of a party to supply a term.

k. Void Contract Is Not Always a Nullity

Although a wholly executory void contract is a nullity, if there is performance under a void bilateral contract, the case should be treated as if an offer looking to a unilateral contract or a series of unilateral contracts was made. If this cannot be done, a quasi-contractual action for reasonable value may be available.


1.    Introduction

The quantity term may be measured by the requirements of the buyer (requirements contract), or by the output of the seller (output contract). Since the rules are basically the same in the two situations, as a matter of convenience, emphasis will be on the topic of requirements contracts.

2. Validity

Under the UCC it is clear that these contracts are binding.

  1. How Much Is a Requirements Buyer Entitled to?

Under the UCC the buyer under a requirements contract is entitled to good faith needs with two exceptions. (1) If there is a stated estimate, the buyer is not entitled to any quantity disproportionately greater than the estimate. (2) If there is no estimate or maximum or minimum stated in the contract, the buyer may demand only any normal or otherwise comparable prior requirements.

  1. May a Requirements Buyer Diminish or Terminate Requirements? Under the UCC, the buyer may go out of business or change methods of doing business in good faith. This is so even if the reductions are highly disproportionate to normal prior requirements or stated estimates.
  3. Rule

The general rule is that all of the purported considerations need not be valid.

2. Conjunctive Promises

The rule stated above applies to conjunctive promises, e.g., a debtor promises to pay a past due debt and to perform additional services. The debtor’s promise provides consideration for a counter-promise.


1. Where the Choice of Alternatives Is in the Promisor

In this case, each alternative must be detrimental unless, according to the Restatement (Second), there is a substantial possibility that events may eliminate the alternative that is not detrimental before the promisor exercises a choice.

2. Where the Choice of Alternatives Is in the Promisee

If the choice of alternatives is in the promisee, the alternative promises supply consideration for a counter-promise if any of the alternative promises is detrimental.


1. Introduction

Where a promisor makes a promise because of an antecedent moral or legal obligation, it is clear that the promise is not enforceable under the doctrine of consideration because of the rule that past consideration is not consideration.

2. Rule

In most instances, a promise made in recognition of a prior moral or legal obligation is not enforceable.

  1. Major Exceptions

a. Promise To Pay Fixed Amount for Services Previously Requested Where No Price Fixed

If services were rendered with the expectation on both sides that they would be paid for, and the parties agree on a fixed price, there is consideration for the new agreement. Beyond that most courts enforce a promise by a party to pay a fixed amount even though it is not accepted by the other party. Under a minority view, the promise is enforced only to the extent that it is not greatly disproportionate to the value of the services.

b. Promise To Pay When Services Not Requested

Under the majority view, a promise to pay for services not requested is not enforceable. The Restatement (Second), however, states that the promise is enforceable to the extent necessary to prevent injustice if the promisee has conferred a material benefit on the promisor.

  1. Promises to Pay Debts Discharged by the Statute of Limitations A promise to pay all or part of any antecedent contractual or quasicontractual obligation for the payment of money causes the statute of limitations to run anew. An acknowledgment is ordinarily deemed the equivalent of a promise, as is a voluntary part payment of principal or interest. In most states, the promise or the acknowledgment must be in writing. The action is limited by the terms of the new promise.

d. Promises to Perform a Voidable Duty

A promise to perform a voidable duty is enforceable despite the absence of consideration, as long as the new promise does not suffer from an infirmity that would in turn make it voidable. This rule does not generally apply to void contracts.


1. Introduction

The doctrine of promissory estoppel was created as a separate and specific doctrine in the Twentieth Century. Prior to that, the doctrine was employed, although not so labeled, in a limited number of cases. These included (1) family promises; (2) a promise to make a gift of land; (3) gratuitous agencies and bailments; (4) charitable subscriptions; and (5) marriage settlements.

There were specific rules for each category.

2. Restatement, First

Under the formulation of the First Restatement, the elements required for the doctrine to operate are: (1) A promise is required. (2) The promise must be one which the promisor should reasonably anticipate will lead the promisee to act or forbear. The same thought could be expressed by saying that the promisee must justifiably rely on the promise. (3) The reliance must be of a substantial character. (4) The promise will be enforced only if injustice can be avoided by the enforcement of the promise. (5) Although not stated, the notion is that the promise will be enforced as made or not at all.

3. Restatement (Second)

The Restatement (Second) has made four important changes in the formulation of the doctrine. (1) In the text it has eliminated the requirement that the reliance be definite and substantial. However, a comment indicates that these are still factors to be considered except as indicated below. (2) It added a new sentence permitting flexibility of remedy. Thus the promise need not be enforced as made but may be enforced to the extent of reasonable reliance. (3) It provides for the contingency of reliance by a third party. (4) It contains a provision that a charitable subscription or a marriage settlement is binding without proof that the promise induced action or forbearance.

4. Present Approach to Gift Promises

Although initially the courts for the most part used promissory estoppel as a substitute for consideration in the types of cases mentioned in the introduction, with the impetus given to the doctrine by the two Restatements, it is fair to say that the present tendency is to use promissory estoppel in just about any case where the necessary elements are present.

5. Doctrine Has Been Used in Business Context

The doctrine has been used in some cases: (1) to make an offer irrevocable; (2) to enforce a promise that is part of an otherwise unenforceable defective contract; and (3) to enforce a promise made during the course of preliminary negotiations.



  1. Who Is an Infant?
    • person remains an infant until the first moment of the day preceding his or her 18th birthday and remains an infant despite emancipation and despite marriage.
  2. Is Infant’s Promise Void or Voidable?
    • contract made by an infant is voidable at the option of the infant. However, the infant may not disaffirm certain contracts because public policy or a statute so provides or because the infant has done something or promised to do something which the law would compel even in the absence of contract (e.g. support his out-of-wedlock child).

3. Tort Liability

An infant may avoid a contract, but is liable for torts. At times, it is difficult to distinguish tort liability from contractual liability, such as in the area of fraud and warranty.

  1. Avoidance and Ratification

a. Avoidance

The infant may avoid (disaffirm) the contract at any time prior to ratification. The avoidance may be made during the period of infancy and once made is irrevocable. In the case of real property, however, the majority rule is that the infant’s promise may be avoided only after majority.

b. Ratification

The infant may ratify (affirm) the contract after reaching majority. This may take place in three ways: (a) express ratification, (b) conduct manifesting an intent to ratify (retention and enjoyment of benefits and services), and (c) failure to disaffirm within a reasonable time after majority.

c. Ignorance of Law and Fact

A ratification is ineffective if the former infant is unaware of the facts upon which the ratification depends. There is a split of authority as to whether the infant must know that the law gives a power of avoidance.

5. Effect of Misrepresentation of Age

According to the majority view, infants may disaffirm even if they misrepresented their ages. The authorities are about evenly split on the question of whether infants are liable in tort for misrepresenting their ages.

6. Infants and Subsequent Purchasers for Value

If a minor disaffirms a conveyance of real property, the land may be reclaimed from a subsequent good faith purchaser for value without notice.

The rule is different in the case of a sale of goods and a sale of securities.

  1. Restitution After Disaffirmance

a. Infant as Defendant

Upon disaffirmance, the infant is liable for the return (or the value) of any tangible benefits the infant has received and still has.

b. Infant as Plaintiff

If upon disaffirmance an infant sues for the return of the consideration the infant has supplied, under the now prevailing view the infant’s recovery is offset by the value of use and depreciation of any property obtained from defendant. The more traditional view is that only property the infant still has need be returned.

c.  Necessaries

An infant is liable in quasi-contract for the reasonable value of necessaries the infant has received.


1. Tests of Mental Incompetency

Where there is no prior adjudication of incompetence, the great majority of the cases utilize the test of whether the party was able to understand the nature, purpose, and consequences of the act at the time of the transaction. The more modern view adopts in addition the test of whether by reason of mental illness or defect a person is unable to act in a reasonable manner in relation to the transaction, and the other party has reason to know of this condition. Under either test, the promise of the incompetent is voidable. If, however, the party had been adjudicated as incompetent prior to the transaction and a guardian had been appointed, the transaction is void.

2. Restrictions on Power of Avoidance

The promise of an unadjudicated incompetent that is still executory is voidable; but executed transactions are not voidable (contrary to infancy cases) unless the incompetent can restore the other party to the status quo ante. If the incompetence was obvious, however, the incompetent must make restitution only to the extent that tangible benefits remain.

3. Necessaries

As in the case of infants, incompetents are liable for the reasonable value of necessaries furnished them.



1. Rule

A total integration (a writing that the parties intend to be final and complete) cannot be contradicted or supplemented. A partial integration (a writing that the parties intend to be final but not complete) cannot be contradicted but may be supplemented by consistent additional terms.

2. Focus of Rule

If applicable, the rule excludes prior written or oral agreements entered into by the parties and contemporaneous oral agreements, but contemporaneous writings are normally held to be part of the integration.

3. How to Determine Finality

Any relevant evidence is admissible on the question of finality. There are not many disputes about finality. The basic question is did both parties assent to the written terms.

4. How to Determine Completeness

There are many disputes about completeness and a wide variety of views as to how completeness should be determined. These include: (1) The Four Corner’s Rule; (2) The Collateral Contract Concept; (3) Williston’s Rules; (4) Corbin’s View; (5) The UCC (§ 2–202) Approach; and (6) That of the

Restatement (Second).

5. Subsequent Agreement

The parol evidence rule never excludes subsequent agreements.

  1. Rule of Substantive Law or Procedure?

The rule has both a procedural and a substantive aspect. It is procedural because it excludes evidence; it is substantive because it determines the terms of the contract.

  1. Is the Offered Term Contradictory or Consistent?

Under the modern view, to be contradictory the offered term must contradict an express term of the integration. It is not enough that it may contradict an implied or inferred term.

8. Undercutting the Integration

The parol evidence rule is not applicable unless there is a contract. Thus, the rule permits evidence offered to show that the agreement is void or voidable.

For example, a party may show sham, illegality, mistake, duress, or the existence of a condition precedent to the formation of the contract.


  1. What Is Interpretation?

Interpretation is the ascertainment of the meaning of a communication or a document. In interpreting, there are two fundamental questions: (1) Whose meaning is to be given to the communication—in technical language, what standard of interpretation is to be used? (2) What evidence may be taken into account?

2. Variety of Views

As in the case of the parol evidence rule there are a wide variety of views on these two questions. These include (1) The Plain Meaning Rule; (2) Williston’s Rules; (3) Corbin’s View; (4) The UCC Rule.

3. Rules of Construction

A rule of construction is an aid in interpreting contracts. For example, specific terms are given greater weight than general terms.

4. Course of Dealing

A course of dealing is based upon a sequence of previous conduct between the parties.

Under the UCC, this as well as the evidence discussed in 5 and 6 below may always be shown unless negated by the contract.

5. Course of Performance

A course of performance relates to conduct after the agreement in the performance of the agreement.

6. Usage of Trade

A usage of the trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question.

  1. Relationship Between Parol Evidence Rule and Interpretation Again there are various views. For example, Corbin takes the position that the parol evidence rule does not apply to a question of interpretation. Williston, however, in general, follows the notion that an integrated writing may not be contradicted under the guise of interpretation.


Major Classes of Cases Covered by Writing Requirements. These include: (1) a promise to answer for the debt, default or miscarriage of another; (2) a contract to transfer an interest in real property or an actual transfer of real property; (3) a promise which by its terms is not to be performed within one year from the making thereof; (4) a promise in consideration of marriage; and (5) contracts for the sale of goods (UCC).

1. Suretyship Agreements

  1. Where There Is No Prior Obligation Owing From the Third Party (TP) to the Creditor (C) to Which D’s Promise Relates

Here, D stands for Defendant—the party who has allegedly made a promise for to answer for the liability of another, here, TP. The promise of D is original (not within this subsection of the Statute so that it is not a defense) unless (1) there is a principal-surety relationship between TP and D and C knows that; (2) the promise is not joint; and (3) the main purpose rule does not apply. If all of these elements are present, D’s promise is collateral (the Statute of Frauds is a defense).

  1. Cases Where There Is a Prior Obligation Owing From TP to C to Which D’s Promise Relates

Here, the promise is collateral (the Statute is a defense). Exceptions: (1) where there is a novation; (2) where D’s promise is made to TP; (3) where the main purpose rule applies.

(1) Main Purpose Rule

Where the promisor (D) has for an object a benefit which D did not enjoy before the promise, which benefit accrues immediately to D, D’s promise is original (enforceable) whether or not TP was obligated at the time of the promise, and even though the effect of the promise is to answer for the debt, default or miscarriage of another.

(2) Promise of Del Credere Agent

An oral promise of a del credere agent is enforceable (original). D is a del credere agent if D receives possession of C’s goods for sale upon commission and guarantees to C that those to whom sales are made (TP) will perform.

(3) Promise of Assignor

The oral promise of an assignor to the assignee guaranteeing performance by the obligor is original (enforceable).

(4) Promise to Buy a Claim

If TP owes C $100 and C assigns this right to payment to D and D promises to pay a price for the assignment, D’s promise is enforceable because D’s promise is a promise to buy a claim and not a promise to answer for the debt, default or miscarriage of another.

(5) Promise by Executor or Administrator

The Statute applies only where the executor or administrator promises to pay out of his or her own pocket a debt of the deceased. Thus, this provision is merely a particular application of the Suretyship Statute of Frauds.

  1. Real Property

a. In General

A conveyance of land or of an estate in land, or a promise to transfer an interest in land, or a promise to pay for an interest in land are all required to be evidenced by a writing.

b. Interest in Land

This includes the creation, transfer or assignment of a lease (except for a lease of short duration). It also includes an easement, rent and, according to the majority rule, a restriction on land. Also covered are equitable interests in lands such as an assignment of a right to purchase land. An option to buy realty is also included. But the Statute does not apply to an interest in land that arises by operation of law.

c. Liens

A promise to give a mortgage or other lien as security is within the Statute. However, an assignment of a mortgage is not within the Statute; it is connected to the debt it secures. The debt (a chose-in-action) is regarded as the core of the rights transferred.

d. Products of the Soil—Timber—Unborn Animals

Products of the soil such as timber and annual crops obtained through labor or borne on perennial trunks (e.g. apples) are not interests in land.

These products as well as unborn animals are goods.

e. Other Things Attached to Land

A contract for the sale of minerals or a building attached to land is the sale of an interest in land if they are to be severed by the buyer but not if they are to be severed by the seller.

f. Contracts Indirectly Relating to Land

Contracts that indirectly relate to land are not within this section of the Statute. For example, a contract to build a building is not within this section of the Statute of Frauds.

g. Performance

If the vendor of the property conveys to the vendee, an oral promise by the vendee to pay is enforceable. Payment by the vendee does not make the promise of the vendor enforceable unless there is other conduct that is unequivocally referable to the agreement, for example, taking possession of the land and making improvements.

  1. Contracts Not Performable Within a Year

a. In General

The Statute applies only to a promise which by its terms does not admit of performance within one year from the making thereof. If, by its terms, performance is possible within one year, however unlikely or improbable that may be, the promise is not within this section of the Statute of Frauds.

  1. Promises of Uncertain Duration

Promises of uncertain duration are not within the one year provision.

c. Contracts for Alternative Performances

Where a contracting party promises one of two or more alternative performances, the promises as a unit are not within the one-year section if any of the alternatives can be performed within one year from the time of the making thereof. It does not matter which party has the right to name the alternative.

d. Agreement With Option to Terminate

If a contract calls for a performance of more than a year, but one or both of the parties has an option to terminate within a year, the majority view is that the Statute applies because termination is not performance. The minority view is contrary on the theory that alternative promises exist: (a) performance for more than one year or (b) performance within a year. The same two views exist in the case of a contract for less than a year where one or both parties have an option to extend or renew it beyond a year.

e. Effect of Performance Under One–Year Section

Under the majority view, full performance by one party makes the promise of the other party enforceable. A minority of jurisdictions restrict the performing party to a quasi-contractual remedy. Part performance does not generally permit a party to enforce the contract.

f. Measuring the Year

If A contracts to work for B for one year, the work to begin more than one day after making the agreement, the contract is within the one-year section. If the work is to begin the very next day, however, the contract is not within the Statute on the theory that the law disregards fractions of a day.

g. Restatement of Contract at Beginning of Performance

A subsequent restatement of the terms of the contract starts the one year period running again if the manifestation of mutual assent would be sufficient in the absence of prior agreement.

h. Unilateral Contracts

There is substantial authority that unilateral contracts do not fall within this subsection of the Statute of Frauds because full performance by one party in any event takes the case out of the one year provision of the Statute of Frauds. In jurisdictions where this is not true, it must be noted that a contract does not arise until there has been performance. Therefore the year should be measured from that time.

i. Scope of One–Year Section

The one-year section applies to all contracts no matter what the subject matter except for a short term lease and the sale of goods. However, it does not prevent specific performance of a land contract under the rules governing specific performance set forth below.

  1. Is a Promise or a Contract Within the One–Year Section? Where any of the promises on either side of a bilateral contract (except for alternative promises) cannot be performed within a year from the formation of the contract, the entire contract is within the Statute. This means that none of the promises in the contract may be enforced in the absence of a sufficient memorandum, or performance, or the application of the doctrine of estoppel (see below).
  2. Contracts in Consideration of Marriage

a. Consideration of Marriage

The Statute applies to any agreement made in consideration of marriage except mutual promises to marry. It applies to marriage settlements and prenuptial agreements even if the promise is made by a third party.

b. Not in Consideration of Marriage

If the promise is made in contemplation, but not in consideration, of marriage, this subsection of the Statute does not apply. The same is true if the marriage is merely an incident of the contract and not an end to be attained.

c. Performance

A marriage ceremony does not take the case out of the Statute of Frauds, but additional performance may be sufficient to make the contract enforceable.

  1. Contracts for the Sale of Goods (UCC § 2–201)

a. Rule

A contract for the sale of goods for a price of $500 or more is within the


b. Exceptions

  • A contract for the sale of goods to be manufactured is not within the Statute if [t]he goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer and the seller has made either a substantial beginning or commitments for their procurement. The seller need not be the manufacturer.
  • A contract is enforceable if the party against whom enforcement is sought admits that a contract for sale was made, but the contract is not enforceable beyond the quantity of goods admitted.
  • No writing is necessary as to items which have been received and accepted.
  • The writing requirement is also eliminated with respect to goods for which payment has been made and accepted.
  1. What Is Covered?

This section relates to a contract to sell or a sale of goods. It does not apply to choses in action.

  1. Sufficiency of Memorandum

a. Introduction

If the contract is within the Statute, a sufficient writing is required. The writing need not be formal or integrated. A note or a memorandum is sufficient.

b. Contents of Writing

The writing should (1) indicate that a contract has been made or that the signer made an offer; (2) state with reasonable certainty (a) the identity of the contracting parties, (b) the subject matter, and (c) the essential terms in contrast to details or particulars; and (3) be signed by the party to be charged.

  1. What Is a Signature?

A signature is any mark, written, stamped or engraved, which is placed with intent to assent to and adopt (authenticate) the writing as one’s own.

  1. Who Is the Party to Be Charged?

The party to be charged is the one against whom the claim is being made.

e. Agency

A memorandum is sufficient if it is signed by an authorized agent of the party to be charged. The authority of the agent need not be expressed in writing, except in many jurisdictions under the real property provision.

  1. Oral Evidence Offered by Defendant to Defeat Claim The party sued may show that the memorandum does not reflect the true agreement and thus defeat the claim except to the extent that the parol evidence rule excludes such evidence.

g. Oral Evidence Offered by Plaintiff

Evidence of an essential term orally agreed to is not admissible on behalf of the party seeking to contradict or supplement the writing and this is true whether or not the writing is an integration.

h. Interpretation

Oral evidence is admissible in aid of interpretation unless it is excluded under the rules of interpretation set forth above.

i. Consideration

If the plaintiff has fully performed, the plaintiff’s consideration need not be stated in the writing. Any essential promise that is executory must be stated.

  1. Form

The memorandum may be in any form.

  1. Time

It may be made at any time.

l. Purpose

It need not be prepared with the purpose of satisfying the Statute except in the case of a contract in consideration of marriage.

  1. Delivery

It need not be delivered.

n. More Than One Writing

If the essential terms are in two writings, and only one is signed by the party to be charged, the Statute is satisfied if the unsigned document is physically attached to the signed document at the time it is signed or if one of the documents by its terms expressly refers to the other, or if the documents by internal evidence refer to the same subject matter or transaction. Extrinsic evidence is admissible to help show the connection between the documents and the assent of the party to be charged.

  1. Memorandum Provision of the UCC

a. Contents of Memorandum

Under the UCC, there are only three requirements: (1) the writing must evidence a contract for the sale of goods; (2) it must be signed by the party to be charged; and (3) it must specify a quantity.

b. Written Confirmation Between Merchants

If a merchant sends a signed memorandum to another merchant in confirmation of the agreement, and if the memorandum is sufficient against the sender, it is also sufficient against the receiver provided it is received and the party receiving it has reason to know of its contents, and fails to give notice of objection to its contents within 10 days after it is received.

c. Auction Sales

The auctioneer is authorized to sign a memorandum on behalf of both parties for a limited period of time after the sale.

  1. Other Problems Under Statute of Frauds

a. Purpose of Statute

The statute is designed to prevent perjury and to promote deliberation and seriousness.

b. Effect of Noncompliance

Under the majority view, failure to comply with the statute renders the contract unenforceable. The minority view regards the contract as void. Under the majority rule, the oral promises are valid but they may not be sued upon at law.

c. Promissory Estoppel

Many recent cases allow recovery despite the Statute of Frauds when the plaintiff injuriously relied on an oral promise. The phrase that is often used is unconscionable injury.

d. Estoppel in Pais

If a party falsely represents that a memorandum of the contract has been signed and the other party injuriously relies on the representation, the party so representing will be estopped from relying upon the Statute of Frauds.

  1. Effect of Some Promises Within and Others Outside Statute The general rule, subject to limited exceptions, is that where one or more of the promises in a contract are within the Statute and others are not, no part of the contract is enforceable.

f. Rescission of Contract Within Statute

The parties may orally rescind a written executory contract within the Statute. They cannot orally rescind a transfer of property.

9. Modification of a Contract Within the Statute

  1. If the new agreement is not within the Statute of Frauds, it is not only enforceable without a writing but also serves to discharge the prior agreement.
  2. If the new agreement is within the Statute and is not evidenced by a sufficient writing, the former written contract remains enforceable unless the new agreement is enforced because of waiver or estoppel.

10. Relationship of Various Subsections

A promise may contravene one or more of the subsections of the Statute of Frauds and not the others. If it falls within even one subsection, a writing is required unless the case is taken out of the Statute under the theory of performance or estoppel. For example, a contract for the sale of real property that by its terms cannot be performed within one year must satisfy both the one-year and real property provisions. However, the UCC Statute of Frauds stands alone. If the UCC is satisfied no other provision applies.



A condition is an act or event, other than a lapse of time which, unless the condition is excused, must occur before a performance under a contract becomes due, or which discharges a duty of immediate performance.

1. Classifications of Conditions

Conditions are either precedent, concurrent, or subsequent to the time when the other party’s duty of performance becomes absolute. Any of these conditions can be created by agreement (express and implied-in-fact conditions) or imposed by the court (constructive condition).

2. Conditions Versus Promises

Failure of a condition imposes no liability on any party. A breach of promise creates a duty to pay damages. Note, however, that the same act may be both a condition and a promised event. In other words, a party may have promised that the event would occur and have conditioned his or her rights on the occurrence of the event. If the event does not occur, there is both a breach of promise and a failure of condition.


1. Performance of Express and Constructive Conditions

Express conditions must be fully performed. Constructive conditions are satisfied by substantial performance. If a party has substantially performed, any breach is immaterial. A party who has materially breached cannot have rendered substantial performance.

2. Measuring the Materiality of Breach

The following factors help determine materiality: willfulness, the degree of harm, curability of the breach by a monetary allowance, hardship on the breaching party, and the type of transaction. The same and similar factors are used to determine the substantiality of the performance. There are times when a breach is immaterial but substantial performance has not been rendered, e.g., a delay in conveying land may be immaterial, but substantial performance has not been rendered.

3. Effect of Delay

A reasonable delay is not a material breach unless the contract expressly makes time of the essence, or the contract is for the sale of goods or the payment of a debt and there is a day or period certain for performance.

4. Effect of a Condition of Satisfaction

Where the contract expressly conditions performance upon the satisfaction or certification of a third person (e.g., an architect), the condition is treated as any other condition. If it is conditioned on the satisfaction of a contracting party, the same rule is applied if the performance is designed to gratify the taste or fancy of the party. However, if the performance is a matter of mechanical fitness, utility or marketability, the condition of satisfaction of a party is fulfilled if the performance is objectively satisfactory even if the party is not personally satisfied. In all cases, an expression of dissatisfaction must be made in good faith.


1. Divisibility

A contract is divisible if the performances of each party are divided into two or more parts and the performance of each part by one party is the agreed exchange for a corresponding part by the other party. If a divisible portion is substantially performed, recovery may be had for that portion despite a material breach of the overall contract.

2. Independent Promises

A promise is unconditional (independent) if it is unqualified or if nothing but a lapse of time is necessary to make the promise presently enforceable. The promisee may enforce an independent promise without rendering substantial performance.

3. Quasi–Contractual Recovery

Although the orthodox and still prevailing view is that a party who has materially breached may not recover from the other party in contract or quasi contract, the modern trend permits such recovery in quasi contract for benefits conferred in excess of damages caused by the breach.

4. Statutory Relief

A number of statutes permit recovery despite a material breach. Laborers, mechanics, and clerical workers must be paid their wages despite the non-fulfillment of agreed conditions. The UCC has a formula that permits a buyer in default to get partial restitution of a down payment.


1. Prevention

A condition is excused by prevention, hindrance, or failure to cooperate, provided the conduct is wrongful. When a condition is excused, recovery is permitted despite the non-occurrence of the condition.

2. Estoppel, Waiver, and Election

A waiver is often defined as an intentional relinquishment of a known right. It is important to know that this definition is nonsense. Conditions, not rights, can be waived. Waivers are often unintentional. Not all waivers, however defined, are effective.

a. Waiver Before Failure of Condition

  • A waiver of a condition that constitutes a material part of an agreed exchange is ineffective in the absence of consideration, its equivalent, or an estoppel.
  • A waiver of a condition that is not a material part of the agreed exchange is effective but it may be reinstated by notice prior to any material change of position by the other party.
  • An effective waiver disables the party from canceling the contract but does not discharge the waiving party’s right to damages.

b. Waiver After Failure of Condition

A waiver after an express or constructive condition has failed is an election. An election may take place by conduct or by promise. No consideration is needed for an election and, according to the majority rule, an election once made cannot be withdrawn.

3. Excuse of Conditions Involving Forfeitures

A condition may be excused if it involves an extreme forfeiture, its occurrence is not a material part of the agreed exchange, and if one of the foundations for equitable jurisdiction exists.

4. Excuse of Condition Because of Impossibility

Impossibility excuses a condition, if the condition is not a material part of the agreed exchange and if a forfeiture would otherwise occur.


1. Repudiation

A repudiation is a material breach whether or not performance is due now or in the future. A party’s unjustified statement positively indicating an inability or unwillingness to substantially perform is a repudiation. A voluntary act that renders one’s own performance impossible or apparently impossible is another kind of repudiation.

2. Prospective Failure of Condition

If a party repudiates or appears unwilling or unable to perform, the other party may possibly (1) continue performance; (2) suspend or withhold performance; (3) change position or cancel the contract. Which of the responses is permissible depends upon the degree of the prospective failure of condition.

3.       Retraction

A repudiation may be retracted and a prospective unwillingness or inability to perform can be cured unless the aggrieved party has canceled or materially changed position or otherwise indicated the contract is canceled.

4. Urging Retraction

Rights are not prejudiced by the mere fact the aggrieved party has urged the other party to retract a repudiation.

5. Effect of Impossibility on a Prior Repudiation

Subsequent impossibility will discharge an anticipatory breach and partial impossibility will limit damages for the breach.

6. Failure to Give Assurances as a Repudiation

Under the UCC, a party who has reasonable grounds for insecurity may suspend performance and demand adequate assurance of the other’s performance. Failure to give adequate assurance within a reasonable time, not exceeding 30 days, operates as a repudiation. The Restatement (Second) is in substantial accord.

7. Insolvency

When a seller discovers that a buyer is insolvent the seller may: (a) refuse delivery except for cash, including payment for all goods previously delivered under the same contract; (b) stop delivery of goods in transit; (c) reclaim goods delivered on credit to a party while insolvent, provided that demand for their reclamation is made within ten days of receipt by the buyer; (d) reclaim goods delivered on credit to a party while insolvent irrespective of the ten day period, if the buyer has made a representation of solvency to the particular seller within three months before delivery.

8. Repudiation of a Debt

There is one important exception to the general rule that a repudiation operates as a total breach. No action lies for repudiation of a unilateral obligation to pay a sum of money at a fixed time or times in the future.

9. Repudiation and Right to Elect

As a general rule, the aggrieved party may elect to continue the obligations of the contract despite a material breach. Where, however, there is a repudiation, anticipatory or otherwise, the aggrieved party usually cannot elect to continue the contract. Except in the rare case where continuation of performance would minimize damages, the aggrieved party has no right to continue performance after a repudiation.


1. Obligations of the Seller

The seller must make a tender conforming in every respect to the contract. If the tender is not perfect, the buyer may reject the whole, accept the whole, or accept any commercial unit or units and reject the rest. This drastic rule is eroded by the following qualifications.

a. Unless Otherwise Agreed

The contract may expressly limit the perfect tender rule or the rule may tacitly be limited by a trade usage, course of dealing or course of performance.

b. Cure Within the Contract Time

If a non-conforming tender is made and the time for performance has not yet expired, the seller may seasonably notify the buyer of an intention to cure and may within the contract time make a conforming tender.

c. Cure After the Contract Period

When the buyer rejects a non-conforming tender that the seller had reasonable grounds to believe would be acceptable with or without a money allowance, the seller may, upon reasonable notification to the buyer, have a further reasonable time to substitute a conforming tender.

d. Acceptance

Once the goods have been accepted, rejection is no longer possible, although revocation of acceptance may be an available alternative. An acceptance may be express, or result from a failure to reject or to demand cure before a reasonable time to inspect the goods has passed.

e. Revocation of Acceptance

The buyer may revoke acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to the buyer, provided (a) acceptance was on the reasonable assumption that seller would cure and has not seasonably cured; or (b) acceptance was reasonably induced by the difficulty of discovery or by the seller’s assurances. Revocation must be made within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in the condition of the goods that is not caused by their own defects. Note that the rule is one of substantial performance.

f. Installment Contracts

The perfect tender rule does not apply to installment contracts. An installment can be rejected only if its value to the buyer is substantially impaired. The buyer may cancel the contract only if the non-conformity substantially impairs the value of the contract to the buyer.

g. Improper Shipment

The perfect tender rule does not apply to breach of the duty of proper shipment. Failure to give prompt notice of shipment or to make a reasonable contract (in a shipment contract) with the carrier is grounds for rejection only if material delay or loss ensues.

  1. Obligation of the Buyer

a. Payment

Absent an agreement to the contrary, receipt of the goods and tender of payment are concurrent conditions. Thus, even in a shipment contract (where the seller delivers the goods by placing them on board a carrier) payment is not due until the goods are received at their destination.

b. Proper Tender of Payment

Unless credit has been extended, the buyer must tender the entire amount. Tender need not be legal tender unless the seller demands it and grants the buyer sufficient additional time to procure cash.

c. Acceptance of Conforming Goods

Failure to accept conforming goods or wrongful revocation of acceptance constitutes a breach. Unless otherwise agreed, however, the buyer’s duty to accept and pay for tendered goods is subject to a right to inspect them at any reasonable time and manner.

d. Reasonable Care

If the buyer properly rejects (or revokes acceptance of) goods in the buyer’s possession, a duty is imposed to refrain from any acts of ownership over the goods, and to hold them with reasonable care at the seller’s disposition for a time sufficient to permit a seller to remove them. A merchant buyer has additional responsibilities.


1. Express Warranties

An express warranty is an affirmation of fact or promise with respect to the quality or future performance of goods that becomes part of the basis of the bargain. The affirmation may be in words or by sample or model. An affirmation merely of the value of the goods or merely of the seller’s opinion of the goods is not a warranty.

  1. Implied Warranties

a. Merchantability

If a seller is a merchant with respect to the kinds of goods contracted for, unless effectively disclaimed, there is an implied warranty that the goods be such as pass in the trade under the contract description and are fit for the ordinary purposes for which such goods are used.

b. Fitness for Particular Purpose

If the seller has reason to know that the buyer wants the goods for a particular purpose and knows that the buyer is relying on the seller’s skill and judgment, unless effectively disclaimed, there is an implied warranty that the goods shall be fit for that purpose.

c. Free and Clear Title

Unless effectively disclaimed, a seller impliedly warrants that the title conveyed is good, transfer is rightful, and the goods are free from any security interest or lien of which the buyer was unaware at the time of contracting. Note that this warranty applies also to nonmerchant sellers.

d. Infringement

A merchant who regularly deals in the kind of goods in question warrants, unless effectively disclaimed, that no patent or trademark is being infringed, but if the buyer furnishes the specifications, the buyer must hold the seller harmless against any third party claim if infringement arises out of the use of the specifications.

  1. Disclaimer of Warranties

a. Express Warranties

If a contract contains express warranties as defined above, as well as a provision that states no express warranties are made, an attempt must be made to reconcile the two provisions. If consistency cannot be attained, the disclaimer is inoperative.

b. Implied Warranties

All implied warranties, except free and clear title, are disclaimed by language such as “as is”. If other language is employed, the warranty of merchantability is the most difficult to exclude. If the exclusion is written, the language of exclusion must use the word “merchantability” and must be conspicuous. The warranty of fitness can be excluded only in writing and only if the exclusion is conspicuous.

c. Implied Warranty of Free and Clear Title

This warranty can be excluded only by specific language or circumstances that give the buyer reason to know that the seller does not claim title or is only purporting to sell such right as the seller has.

d. Limitation on Remedies

Even if there is no disclaimer, remedies for breach of warranty may be limited pursuant to the provisions of UCC §§ 2–718 and 2–719.



1. Impracticability is Not Necessarily a Defense

The general rule is that the promisor must perform or pay damages for failure to perform no matter how burdensome performance has become even if unforeseen changes have created the burden.

2. When Impracticability Is a Defense

When a performance becomes impracticable because of an event, the non-occurrence of which was a basic assumption on which the contract was made, the duty is discharged, unless the language or situation points to a contrary result.

3. What Assumptions Are Basic

There are certain understood risks assumed by the parties. These include market shifts, interruption of supplies (unless caused by war, embargo, or the like), and financial capability. Where, however, the difficulty in performing is caused by certain supervening events, it is sometimes held that a basic assumption is violated. These events include (1) destruction of the subject matter or of the tangible means of performance; (2) death or illness of a person essential for performance; (3) supervening illegality or prevention by law; (4) reasonable apprehension of danger to life, health or property.

4. Temporary and Partial Impracticability

When the impracticability is temporary or partial, the general notion is that the promisor is obligated to perform to the extent practicable unless the burden of performance would be substantially increased. However, the promisee may reject any delayed or partial performance if the tendered performance is less than substantial.

a. Temporary Impracticability Under the UCC

If the seller expects to be late in tendering delivery and if the lateness is excusable because of impracticability, the seller must timely notify the buyer of the expected delay. The buyer may then cancel any noninstallment contract. The buyer may cancel any installment delivery or installment contract under the criteria for cancellation discussed in connection with exceptions to the perfect tender rule. On the other hand, the buyer may within a reasonable time, not exceeding 30 days, agree to accept the delayed delivery or deliveries.

b. Partial Impossibility Under the UCC

Allocation is the key concept when the seller, on grounds of impracticability, can deliver only part of the promised goods. The seller must seasonably notify the buyer of the shortfall, and inform the buyer of the estimated quota allocated. The buyer has a reasonable time, not exceeding 30 days, to accept the allocation. If the buyer does not accept, the seller’s duties are discharged. If the contract is an installment contract, the buyer’s right to cancel are subject to the criteria for canceling installment contracts discussed in connection with exceptions to the perfect tender rule.

  1. Impracticability of Means of Delivery or Payment

a. Delivery

The UCC provision that deals with unavailability of an agreed type of carrier, docking facility, or manner of delivery focuses on the use of commercially reasonable substitutes. Although delivery modalities may be of serious concern, they are not usually at the core of the bargain. Consequently, if available, a commercially reasonable substitute must be employed and accepted.

b. Payment

If the agreed manner of payment becomes unavailable, the seller’s obligation to deliver is discharged but, if a commercially reasonable substitute manner of payment is available, the buyer has the option to use the substitute, thereby reinstating the seller’s duty to deliver.

c. Payment After Delivery

If the agreed manner of payment fails because of governmental regulations after the goods are delivered, the buyer may pay in the manner provided in the regulation. Even if this is not a commercially reasonable equivalent, the buyer is discharged unless the regulation is discriminatory, oppressive or predatory.


1. In General

Where the object of one of the parties is the basis upon which both parties contract, the duties of performance are constructively conditioned upon the attainment of the object. Performance is practicable, but the performance one party contracted for has become valueless (or nearly so).

2. Elements

There must be: (1) an event that frustrates the purpose of one of the parties and the non-occurrence of this event must be the basis on which both parties entered into the contract; (2) the frustration must be total or nearly total; (3) the party who asserts the defense must not, expressly or impliedly, have assumed the risk of this occurrence nor be guilty of contributory fault.

  1. Restitution After Discharge for Impracticability or Frustration When a contract is discharged for impracticability or frustration, the executory duties are at an end. Compensation for part performance is available in the restitutionary action of quasi contract.


1. Perspective

When goods or real property are in the process of being sold or are under lease or bailment, the question frequently is, which of the parties must bear the risk of damage or destruction of the subject matter? For example, if Vendor and Purchaser enter into a contract for the purchase and sale of real property, which party should bear the loss caused by a fire that occurs after the contract was entered into and before closing of title?

2. Real Property

The majority rule places the risk of loss on the purchaser. This result is based on the theory of equitable conversion; once the contract is made, the purchaser is regarded by a court of equity as the owner. The minority view places the risk of loss on the seller until title closes. A third view, embodied in the Uniform Vendor and Purchaser Risk Act, enacted in about ten states, places the risk of loss upon a purchaser only if the purchaser is in possession or has legal title.

3. Leases

The orthodox common law rule placed the risk of loss on the lessee. Today, this view seems to have been largely abandoned in favor of the concepts of constructive eviction and implied warranties.

  1. Sale of Goods

a. Effect of Risk of Loss

Assume goods have been damaged without fault of either party. If the risk of loss had shifted to the buyer, the buyer must pay the price. If the risk of loss is on the seller, the seller will be liable for breach of contract unless the breach is cured by tender of replacement conforming goods. In two limited situations the seller may have the risk of loss (seller won’t be paid) but will not be liable for damages. These are situations (1) where impracticability can be invoked; and (2) where the contract expressly provides, No Arrival No Sale. (UCC § 2–324).

b. Shipment Versus Destination Contracts (Where Carrier Is Contemplated)

Most risk of loss cases involve injury to goods in transit. The Code seeks to provide clear and certain rules that usually work in tandem with normal insurance practices in commerce. Merchants have long thought in terms of contracts whereby the seller is responsible for shipping the goods—getting them aboard a common carrier in the seller’s city, as opposed to the much less usual destination contract whereby the seller undertakes the responsibility of getting the goods to the buyer’s city or plant. Under a shipment contract, the risk of loss passes to the buyer when the goods are delivered to the carrier, even if the seller reserves a security interest in the goods. Under a destination contract, risk of loss shifts when the goods are duly tendered to the buyer at destination.

c. Distinguishing Shipment From Destination Contracts

If the contract is unclear whether it is a shipment or destination contract, it is a shipment contract. It is not a destination contract unless it explicitly so provides. There are certain terms, entrenched in commercial usage, which are frequently used to indicate the parties’ intent. These are: F.O.B., F.A.S., C.I.F., and Ex-ship.

  1. Delivery by Seller’s Own Truck or on Seller’s Premises Where a carrier is not used, as where the seller transports the goods in the seller’s own vehicle or the buyer is to pick up the goods, the seller is in control of the goods and is likely to carry insurance on them. If the seller is a merchant, risk of loss shifts only if and when the buyer takes possession of the goods. If the seller is a nonmerchant, the risk shifts when the seller tenders delivery.

e. Goods Held by a Bailee

At times goods in the hands of a bailee, such as a warehouseman, are sold with no expectation of a prompt transfer of possession. Risk of loss passes to the buyer in either of three eventualities. First, if the buyer receives a negotiable document of title that covers the goods; second, if the bailee acknowledges the buyer’s ownership; third, if the seller gives the buyer a non-negotiable document of title or a written direction to the bailee, risk of loss passes after the buyer has had a reasonable time to present the document or direction to the bailee. If the buyer presents the document or direction to the bailee, risk of loss does not shift if the bailee refuses to honor it.

f. The Effect of Seller’s Breach on Risk of Loss

The rules on risk of loss are suddenly made murky if it can be proved that the seller is in breach by tendering non-conforming goods. If the non-conformity is such that the buyer may reject (under the perfect tender rule or the installment contract rules), the risk of loss remains on the seller until the tender is cured or the buyer accepts the nonconforming goods. If the buyer revokes acceptance of the goods the seller is liable for any casualty to the goods to the extent that the buyer’s insurance coverage is inadequate. The buyer, however, must have revoked prior to the casualty for this rule to apply.

g. The Effect of the Buyer’s Breach on Risk of Loss

If the buyer breaches prior to the shift of the risk of loss, the breach will itself shift the risk to the buyer provided that (a) the goods are conforming; (b) they have been identified to the contract; and (c) the loss occurs within a commercially reasonable time from the breach. However, the risk of loss passes to the buyer only to the extent that the seller’s insurance is inadequate to cover the loss.

5. Risk of Loss and Impracticability

The mere fact that the particular goods the seller intends to deliver are destroyed does not give the seller the defense of impracticability. The seller must offer replacement goods or be liable, although under appropriate circumstances the seller may be excused for any unavoidable delay under the doctrine of temporary impracticability. Under the provisions of UCC § 2– 613, however, if the contract dealt with identified goods (e.g., particular pieces of furniture rather than particular types), the seller is excused if the goods are totally destroyed, without the seller’s fault, prior to the risk being shifted to the buyer. If the loss is partial, the buyer has the option to reject the goods or accept them with an allowance.

  1. Two Special Situations: Sale on Approval and Sale or Return

a. Sale on Approval

In a “sale of approval”, the goods are sent to the buyer for the buyer’s use with the understanding that the buyer may return the goods if they do not meet the standard of satisfaction. (See the material on conditions of satisfaction, supra). The risk of loss remains with the seller until the buyer accepts the goods. Failure to notify the seller of a rejection within a reasonable time is an acceptance. The expense of return is also thrust on the seller.

b. Sale or Return

In a “sale or return” (consignment) sale, the goods are sent to the buyer primarily for resale. Although the buyer may return conforming goods, the risk of loss passes to the buyer under the ordinary rules that govern the shifting of risk of loss. The risk remains with the buyer until the goods are returned to the seller at the buyer’s expense.

7. The Omnipotence of the Contract

All the rules governing risk of loss are gap fillers based in large part on the probable intention of the parties. The parties are perfectly at liberty, subject to the rule of conscionability, to provide for the allocation of risk of loss in any way they wish.


1. In General

A bargain is illegal if either its formation or its performance is criminal, tortious, or contrary to public policy. The difficult cases are those where the illegality is somewhat remote from the agreement. Remoteness will be illustrated by four kinds of situations: bribery, license violations, depositary cases, and instances where one party has knowledge of the illegal purpose of the other.

2. Bribery Cases

An agreement is illegal if it calls for the payment of a bribe, is procured by a bribe or is performed by bribery.

3. Licensing Cases

If a license is designed to control the skill or moral quality of persons engaged in a trade or profession, an agreement to practice that trade or profession by an unlicensed person is illegal. If the license is solely a revenue raising measure, the agreement is not illegal. If the license is required for other purposes, the courts will decide on a case by case basis.

4. Depositaries

A depositary of the fruits of a crime may not refuse to return the money or goods deposited, unless the depositary is a party to the illegal transaction.

5. Knowledge of Illegal Purpose

Knowledge by the seller of goods or services of the illegal purpose of the buyer taints the contract with illegality only if the intended purpose involves serious moral turpitude or if the seller does something to further the illegal purpose of the other. Some states, however, make criminal facilitation a crime. Under such a statute knowledge of the illegal purpose would make the contract criminally illegal.

6. Effect of Illegal Executory Agreements

An illegal executory bargain is void so that neither party to the agreement can enforce it.

7.       Exceptions

  1. If a party is justifiably ignorant of the facts creating the illegality and the other is not, the ignorant party may recover damages for breach.
  2. If the illegality is minor and the party who is ignorant of the illegality justifiably relies upon an assumed special knowledge of the requirements of law by the other party, the contract may be enforced in an action for damages by the innocent party.
  3. Certain statutes, enacted to protect a certain class, make only one party the wrongdoer. Contracts in violation of such statutes are enforceable by the protected party.
  4. If an illegal provision does not involve serious moral turpitude and if the parties would have entered into the contract irrespective of the offending provision, the illegal portion of the agreement is disregarded and the balance of the agreement is enforceable. The illegal provision must not be central to the party’s agreement.
  5. If an agreement can be interpreted so that either a legal or illegal meaning can be attributed to it, the interpretation giving the agreement a legal meaning will be preferred. An illegal contract can also be reformed to make it legal.

8. Illegal Bargains Executed in Whole or in Part

Where there has been performance under an illegal bargain, the court will not aid either party and will leave the parties where it finds them.

  1. Exceptions

a. Reprise

The exceptions under Illegal Executory Agreements also apply to actions for restitution.

b. Divisibility

If a performance is illegal, but other performances are legal, recovery may be had for the legal performances provided that the illegal performance does not involve serious moral turpitude. Divisibility is not used in this context in the same sense as it is used in the chapter on performance. Divisibility is not determined according to fixed rules but by the judicial instinct for justice.

c. Not in Pari Delicto

A party who has performed under an illegal bargain is entitled to a quasi-contractual recovery if this party is not guilty of serious moral turpitude and, although blameworthy, is not equally as guilty as the other party to the illegal bargain.

d. Locus Poenitentiae (Place for Repentance)

Even if a plaintiff is in pari delicto and therefore as blameworthy or more blameworthy than the defendant, the plaintiff is entitled to avoid the bargain and obtain restitution if the attempted avoidance is in time to prevent the attainment of the illegal purpose for which the bargain was made, unless the mere making of the bargain involves serious moral turpitude. The plaintiff is generally not permitted to withdraw if any part of the illegal performance is consummated. Repentance comes too late if it comes only after the other party to the bargain has breached the illegal agreement or after attainment of the unlawful purpose is seen to be impossible.

  1. Change of Law

a. Legalization of the Activity

If a contract is illegal when made and subsequently becomes legal because the law is changed, the change does not validate the contract except where the repealing statute so provides.

b. Supervening Illegality

If a contract is lawful when made, but the performance is outlawed prior to full performance, the case is governed by the doctrine of impracticability of performance.

c. Supervening Illegality of an Offer

If a lawful offer is made, but the making or performance of the proposed contract is subsequently outlawed, the power of acceptance is terminated.

11. Change of Facts

Where the bargain is illegal and a change of facts removes the cause of the illegality, the contract remains illegal. However, the parties, with full knowledge of the facts may subsequently ratify the agreement.


1. Perspective

Many methods of discharging a contractual duty are discussed elsewhere; for example, non-fulfillment of a condition, anticipatory repudiation, impossibility of performance, disaffirmance for lack of capacity, etc. In this chapter several kinds of consensual discharge will be discussed.

2. Mutual Rescission

Within limits, parties to a contract are free to end the obligations of the contract by agreement. The limits are imposed by the doctrine of consideration. One must distinguish three situations: (1) the rescission occurs before any performance; (2) the rescission occurs after part performance by one or both parties; (3) the rescission occurs after full performance by one party. In the first two situations, consideration is found in the surrender of rights under the original agreement by each party. In the third situation the rescission is void for want of consideration.

3. Implied Rescission

While rescissions are ordinarily expressed in words, they can be implied from conduct. Some courts call an implied rescission an abandonment.

4. Cancellation Versus Rescission

In the face of a material breach the injured party may properly cancel the contract. In canceling, this party may inartfully use an expression such as “I rescind”. According to UCC § 2–720, which restates the sounder common law cases, unless the contrary intention clearly appears, expressions of cancellation or ‘rescission’ of the contract or the like shall not be construed as a renunciation or discharge of any claim for damages for an antecedent breach.

5. Executory Bilateral Accord

An agreement, either express or implied, to render in the future a stipulated performance that will be accepted in satisfaction or discharge of a present claim is known as an executory accord. At common law, executory accords were unenforceable. Today, the executory accord is a binding contract. Prior to performance or breach, the existing claim is suspended. Upon performance, there is an accord and satisfaction that discharges the claim. If, however, the debtor breaches, the prior obligation revives and the creditor has the option of enforcing the original claim or the executory accord. If the creditor breaches, the debtor may ordinarily obtain specific performance of the accord. New York requires executory accords to be in writing.

6. Unilateral Accord

An offer by a creditor or claimant to accept a performance in satisfaction of a credit or claim is known as a unilateral accord. At early common law, the offeror could, with impunity, refuse the tender of performance. Under modern law, the debtor may, upon refusal of the tender, sue for damages for breach of the accord, or, in a proper case, for specific performance. New York requires that the offer be in writing.

7. Accord and Satisfaction

An accord and satisfaction is formed either by (1) performance of an executory bilateral accord or by acceptance of an offer to a unilateral accord, or (2) creation of a substituted contract.

8. Substituted Contract

A substituted contract resembles an executory bilateral accord. The distinction is that the claimant or creditor agrees that the claim or credit is immediately discharged in exchange for the promise of a future performance.

The prior claim or credit is merged into the substituted contract. Consequently, in the event of its breach, it alone determines the rights of the parties. There would be no right to enforce the prior claim, unless the new agreement is void, voidable, or unenforceable.

9. Novation

A contract is a novation if it does three things: (a) discharges immediately a previous contractual duty or a duty to make compensation; (b) creates a new contractual duty; and (c) includes as a party one who neither owed the previous duty nor was entitled to its performance. It is necessary to distinguish a three party executory accord from a novation. A novation is a substituted contract that operates immediately to discharge an obligation. If the discharge is to take place upon performance, the tripartite agreement is merely an executory accord.

10. Account Stated

An account stated arises where there have been transactions between debtor and creditor resulting in the creation of matured debts and the parties by agreement compute a balance that the debtor promises to pay and the creditor promises to accept in full payment of the items of the account.

11. Release

A release is a writing manifesting an intention to discharge another from an existing or asserted duty. A release supported by consideration discharges the duty. At common law, a release without consideration, under seal, also effectively discharged a duty. Today, the effectiveness of a release, without consideration, is largely dependent upon local statutes. UCC § 1–107 provides that: Any claim or right arising out of an alleged breach can be discharged in whole or part without consideration by written waiver or renunciation signed and delivered by the aggrieved party. Section 1–306 of the revision is to the same effect but delivery is not required.

12. Covenant Not to Sue

A covenant not to sue is a promise not to sue, supported by consideration, either permanently, or for a limited period of time. A release is an executed transaction, while a covenant not to sue is executory. The latter is sometimes used to circumvent the common law rule that the release of one joint obligor releases all of them.

13. Acquisition by the Debtor of the Correlative Right

Acquisition by the debtor of the correlative right in the same capacity in which the debtor owes the duty discharges it.

14. Alteration

A fraudulent alteration of a written contract, by one who asserts a right under it, extinguishes the right and discharges the other party’s obligation. The aggrieved party may forgive the alteration, thus reinstating the contract according to its original tenor. A holder in due course of an instrument altered by a prior holder may enforce it according to its original tenor.

  1. Performance—To Which Debt Should Payment Be Applied?

Where a person owes several debts to a creditor, payments are to be applied in the following sequence:

  • in the manner manifested by the debtor, unless the manifestation violates a duty to a third person such as a surety; but
  • if the debtor manifests no intention, the payment may be applied at the discretion of the creditor, provided it is not applied to a disputed, unmatured, or illegal claim and also provided it is not applied so as to violate a duty of the debtor to a third person of which the creditor is aware, and is not applied as to cause a forfeiture; but
  • if the creditor manifests no intent on receipt of payment, the law will allocate payment in the manner deemed most equitable.

Real Property



Possession, even absent ownership, is a protected property right. Possession plays a central role in property law because of the near-impossibility and great inconvenience of requiring people to prove ownership of all their goods at any time. Moreover, possession and the transmission of possession serve important practical and legal functions.

A. Possession of Unowned and Owned Goods

1. Unowned Goods

Unowned goods either never have been owned or have been abandoned by their owner. Generally the first person who takes possession of an unowned good usually becomes its owner. To satisfy the possession requirement, the possessor must exercise physical control over the object and must intend to control it and exclude others from it. The person who acquires ownership by taking possession of an object is entitled to all the same legal rights as any other owner.

  1. Owned Goods

a) Relationship of the Owner and the Possessor

Unlike the situation with unowned goods, a person does not become the owner of an object that already has an owner simply by taking possession of it. In fact, the possessor is legally obligated to return the object to its owner. The scope of the duty depends on the type of relationship that exists between the possessor and the owner with respect to the property.

b) Lost or Mislaid Property

If an owner has lost or mislaid property, she does not lose title to it unless she abandons her ownership rights. The person who finds the property must return it to the owner. Until the owner is discovered, however, the finder or the owner of the premises where the property was found has a protected possessory right in the property. No one, except the true owner, has a right to take possession from the rightful possessor. The courts have created a number of tests to determine whether the actual finder or the owner of the premises where the property was found has the right to possess it until the true owner is discovered. The tests can be ambiguous in application and may produce conflicting results. However, most issues concerning found property are now covered by legislation or by tort and contract law concepts.

B. Gifts

Possession also plays a central role in the law of gifts. Usually, for a gift to be valid, the donor must deliver possession of the gift to the donee. By requiring the transfer of possession, the law requires that the donor demonstrate an understanding of the legal effect of the gift. Moreover, possession provides the donee with prima facie evidence that a gift was made.

1. Inter Vivos Gifts

An inter vivos gift is given by a living donor to a donee. It must be absolute and irrevocable to be valid.

a) Elements

The three necessary elements for an inter vivos gift are (1) intent, (2) delivery, and (3) acceptance.

1) Intent

The donor must intend to make a present, irrevocable gift, whether of a presently possessory interest or of a future interest. If the alleged donor only intends to make a gift in the future, the gift is an unenforceable promise because it is not supported by consideration. In determining whether the alleged donor had the requisite intent to make a present gift, a court will examine the donor’s verbal and written statements and the other circumstances surrounding the gift.

2) Delivery

Normally, only a manual delivery of the gift to the donee satisfies the delivery requirement. If the donor cannot deliver the gift manually because of its size, location, or character, a court may accept some form of constructive delivery by which the donor transfers control over the gift even though he has not given the donee actual possession. Similarly, the donor may satisfy the delivery requirement if she irrevocably delivers it to a third person as the donee’s agent.

3) Acceptance

A donee is free to reject a gift for any reason. However, courts presume acceptance of a beneficial gift, rather than require an outward manifestation of the donee’s acceptance.

2. Gifts Causa Mortis

A gift causa mortis is a gift made in anticipation of the donor’s imminent death. It is an emergency measure that is designed to permit a dying person a last opportunity to dispose of his or her property. By its nature, it is a conditional gift—contingent on the donor’s death. In effect, the donor is saying that the donee should have the property if the donor is dead. The conditional aspect of the gift has troubled some courts because it appears to be, in essence, a testamentary gift, which is governed by strict statutory requirements. This is particularly troublesome for courts because of the enhanced potential for false claims of gift causa mortis because the alleged donor is dead and obviously unable to testify.


If a property owner fails to sue a person in wrongful possession of it during the statute of limitations period, the possessor may acquire title to the property.

A. Background

Adverse possession operates to confirm the possessory claims of persons that have been asserted long enough and visibly enough. In most cases, such a claimant believes that he owns the property.

B. Theory

A property possessor, even though not an owner, may protect his possession against everyone except the true owner. Although the true owner may bring an action against a wrongful possessor, her failure to do so in time means that the possessor is then protected from action by anyone, stranger or former owner. At this stage, the possessor becomes the owner.

  1. Elements

1. Continuous and Uninterrupted

An adverse possession must last as long as the statute of limitations for a cause of action to recover possession. The possession must be continuous, so that the owner could have sued at any time during the period. It must be uninterrupted, so that no other person possessed adversely to the adverse possessor during that period. The adverse possession of predecessors may be added (tacked) if privity exists between the adverse possessors.

a) Extenuating Features

The statute of limitations does not begin to run against future interests until they become possessory or against possessory interests if, at the time of the wrongful entry, the owner is under a legal disability. However, subsequent disabilities or transfers by the owner do not extend the time period once the cause of action has arisen.

2. Open and Notorious

An owner’s lack of actual knowledge is not a defense, but adverse possession must be sufficiently open and notorious to give notice to any owner inspecting her land.

a) Extent of Possession

An adverse possessor acquires only the property he actually possessed, unless he has color of title to a larger area and actually possesses some part of it, thereby establishing constructive possession of it all.

3. Hostile; Ouster

An adverse possessor must act like an owner with regard to others and must allow them to be on the property only with his permission. He must be hostile to the true owner’s title.

a) Ouster; When the Initial Possession was Permissive

When possession begins permissively, an ouster must occur before it becomes adverse to the owner. The possessor must notify the owner that the possessor has repudiated the owner’s rights in the property.

b) State of Mind

In some jurisdictions, the adverse possessor will acquire title only if she possessed with a good faith belief that she owned the property. Other jurisdictions require the opposite; the adverse possessor must know that someone else owns the property.

D.  Effect

Completion of a successful adverse possession gives the possessor an original title to the property, although it may not be marketable until established in court. Such title is good only against those rights in the property that have been extinguished by the statute of limitations. Therefore, adverse possession will not extinguish future interests, nonpossessory interests, or interests owned by the government.


A.  Present Estates

  1. Types

a) Freehold

Freehold estates have no ascertainable termination date. At common law, a person in possession of a freehold estate was said to have seisin. A fee simple estate was created by a grant to a person “and his heirs.” These words of limitation indicated that the estate was inheritable and would not terminate on the grantee’s death. A fee tail estate was created by a grant to a person “and the heirs of his body.” This estate was inheritable only by the grantee’s lineal descendants. A life estate was created when the grant did not include any words of inheritance. It ended at the grantee’s death or the death of anyone else who was the measuring life.

b) Nonfreehold

Nonfreehold estates have ascertainable termination dates. They include the tenancy for a term, the periodic tenancy, the tenancy at will, and the tenancy at sufferance.

c) Defeasible Estates

Any freehold or nonfreehold estate can be made conditional (defeasible). An estate is determinable if some condition is incorporated into its duration (“so long as”) and if the grantor retains the future interest following it. It ends automatically if the event occurs. Alternatively, an estate is subject to condition subsequent if the grant states that upon the occurrence of a specified event, it may be reclaimed by the grantor (“but if . . . then”). Termination of this estate is optional, rather than automatic. If the property passes to a third person when the condition occurs, rather than to the grantor, the estate is subject to an executory interest.

B. Future Interests

1. Possibility of Reverter and Power of Termination

If the owner conveys a determinable estate, he retains a possibility of reverter. If he conveys an estate subject to condition subsequent, he retains a power of termination (also known as a right re-entry).

2. Reversion

A grantor retains a reversion whenever he gives away possessory estates smaller than he held. A reversion becomes possessory at the natural termination of the prior estate, rather than by cutting it short. A reversion is always vested, though it may be subject to divestment, and requires no special creating language. A grantor may retain both a reversion and a possibility of reverter or a power of termination when he conveys an estate that is both defeasible and smaller than the estate he held.

3. Remainder

A remainder is a future interest created in a third person. It takes effect at the natural termination of a preceding estate, rather than by cutting it short. When a grantor conveys a series of estates of less than fee simple, a series of remainders may exist. A remainder is contingent if the taker is unascertained or if it is subject to a condition precedent. A remainder is vested if it is given to an ascertained person and is not subject to a condition precedent (other than natural termination of the prior interest). A vested remainder is defeasible if it is subject to a condition subsequent and is subject to partial divestment if it is given to a class of persons whose individual ownership shares are reduced as new members enter the class and claim their corresponding fractional shares.

4. Executory Interest

An executory interest divests a prior interest or cannot become possessory immediately upon termination of the prior estate. If the grantor conveys both a defeasible estate and the future interest following it to a third person, the future interest is a shifting executory interest. If the executory interest will divest the grantor’s possessory estate, it is a springing executory interest.

C.  Destructibility

At common law, a contingent remainder was destroyed if it had not vested before the supporting estates terminated. It did not matter whether the preceding estates ended naturally or prematurely. A merger of a preceding estate into a vested future interest also destroyed any intervening contingent remainders. All other future interests were indestructible.

D. Rule Against Perpetuities

This Rule invalidates contingent interests (contingent remainders and executory interests) that could vest or fail to vest more than 21 years after the end of some life in being at the creation of the interest. Thus, contingent remainders and executory interests must be certain to vest or fail within that time period, or they are invalid. Whether the interest actually vests in time is irrelevant if any possibility existed at the time of its creation that it might not, unless the jurisdiction has adopted a wait-and-see rule. A remainder subject to open must be closed and vested as to every member within the time period, or the entire class gift is void, unless the jurisdiction follows the “rule of convenience.” An exception applies when both the present and future interests are given to charities. When an interest is invalid, it is stricken from the document, and either a new reversionary interest is created in the grantor or the preceding estate is enlarged.

E. Rule in Shelley’s Case

At common law, if a grantor conveyed a freehold estate and a remainder to the grantee’s heirs in the same instrument, the remainder was converted to a remainder in the grantee. The remainder then might become vested and might merge with the preceding freehold estate. The Rule does not apply when one interest is legal and the other equitable, and it applies only to land.

F. Doctrine of Worthier Title

At common law, an inter vivos gift of a future interest to the grantor’s heirs was void. It remained a future interest in the grantor. A testamentary devise of an estate to a person who would take the same interest by intestate succession also was void.

G. Marital Estates

1. Dower

Dower was the surviving wife’s common law right to a life estate in one-third of all property her husband owned during the marriage if it was inheritable by her issue.

2. Curtesy

At common law, immediately upon marriage, a husband acquired a legal life estate in all property his wife owned (jure uxoris). As soon as issue were born alive, his life estate was measured by his life alone and was not dependent on his wife’s continued survival (curtesy initiate). After her death, the husband’s life estate continued in its own right (curtesy consummate).

3. Statutory Forced Share

Many states statutorily provide a specified share of a decedent’s estate to the surviving spouse regardless of any conflicting will provisions.

4. Community Property

In community property states, property acquired during marriage generally is owned in equal shares by the spouses even if title is taken in only one spouse’s name.

H. Restraints on Alienation

A deed provision that absolutely prohibits the grantee from conveying the property is invalid. However, a restraint may be valid when it is limited by time or by taker.


A.  Types

1. Joint Tenancy

A joint tenancy includes a right of survivorship, whereby the last surviving joint tenant takes the entire estate. A fee simple absolute estate need not be involved. A joint tenancy requires unity of time (the cotenants acquire title at the same time), unity of title (the cotenants acquire title by the same instrument), unity of interest (the cotenants own equal shares), and unity of possession (the cotenants have equal rights to possess the whole property). Because the modern presumption is for a tenancy in common, a conveyancing instrument specifically must state that the grantees are acquiring title as joint tenants with right of survivorship if that is the grantor’s intent.

a) Severance

Each joint tenant can sever its interest from the joint tenancy, thereby converting that tenant’s share into a tenancy in common. A severance occurs when one joint tenant conveys her interest by deed and may occur if she mortgages, leases, or contracts to convey her interest.

2. Tenancy in Common

The modern presumption is for a tenancy in common. The only required unity is possession.

3. Tenancy by the Entirety

This estate is a joint tenancy between husband and wife. It cannot be severed or terminated except by death, divorce, or mutual agreement.

4. Condominium

A condominium owner has sole ownership of his or her individual unit and owns the common parts of the project as a tenant in common with other unit owners in the project.

5. Cooperative Apartments

In a cooperative apartment building, a corporation owns the building, and the tenants own shares in the corporation, which usually entitles them to a lease to particular apartment in the building.

B. Possession and Income

Each cotenant is entitled to possess all the property, subject to the other cotenants’ equal rights to do the same. No cotenants may exclude the others, and sole possession by one cotenant resulting from the others’ voluntary absence is not actionable. However, a few states charge the tenant in sole possession for a fractional share of the rental value. The Statute of Anne compels a cotenant who collects rent from third parties to account for them to the other cotenants.

  1. Expenditures

1. Affecting Title

Unequal contributions to the purchase price may cause the cotenants to acquire unequal interests if they take as tenants in common. Joint tenants are required to hold equal interests. Therefore, unequal contributions to a joint tenancy constitute either a loan or a gift.

2. Reimbursements

A cotenant is liable for a portion of the property expenses in a contribution action only if she was personally liable for them. Therefore, a cotenant who makes payments necessary to prevent a mortgage foreclosure or otherwise to protect the title may sue the other cotenants for contribution only if they were personally liable for the debt. Alternatively, the payments may constitute an offset in a partition or accounting action. A party who pays for repairs may not sue for contribution unless the other cotenant agreed to share the cost, but that expenditure may be recognized in an accounting or partition action. Similarly, a party who pays for improvements to the property without his cotenant’s consent may recover the cost only in a partition or accounting action and only to the extent they increased the land’s value or the rents from the property.

D. Partition

Partition separates the undivided interests of cotenants into divided, separate interests. It is accomplished either by a physical division of the property (partition in kind) or by a sale of the property and division of the proceeds (partition by sale). Covenants between co-owners not to partition the property may be valid. A tenancy by the entirety may not be partitioned until after a divorce has converted it into a joint tenancy or tenancy in common.

E. Transfers

1. Inter Vivos

Tenants in common and joint tenants may convey their fractional interests. A joint tenant’s conveyance severs her interest from the joint tenancy. A tenancy by the entirety may be conveyed only by the owners’ joint act.

2. Death Transfers

The right of survivorship gives the last surviving joint tenant or tenant by the entirety entire ownership of the property. Tenancy in common interests are subject to testamentary disposition.


A. Leasehold Estates

A leasehold is a nonfreehold estate that gives the tenant a possessory interest. The landlord retains a future interest (a reversion). The tenant’s possession distinguishes a leasehold from a license or an easement.

B. Types of Tenancies

1. Tenancy for a Term

A tenancy for a term arises when the parties have agreed on a termination date for the leasehold estate. If the term is for longer than one year, the Statute of Frauds usually requires a writing. Upon expiration of the term, the tenancy ends automatically.

2. Periodic Tenancy

A periodic tenancy arises when the landlord and tenant have agreed on a regular payment of rent but have not established a termination date. It may arise by express agreement or by a tenant being in possession and paying rent on a regular basis. The length of the period is established according to the time for which rent is paid or calculated. A periodic tenancy is automatically renewed at the end of each period unless either party gives proper notice of termination. At common law, notice had to be given at least one period in advance or six months in the case of a tenancy from year to year.

3. Tenancy at Will

A tenancy at will exists when someone possesses another’s land with her consent but without any agreement as to termination or payment of rent. It may be terminated at any time by either party, though most jurisdictions require some period of notice.

4. Tenancy at Sufferance

A tenancy at sufferance arises when a tenant holds over after the expiration of his term without the landlord’s consent. The landlord can elect to treat him as a trespasser or as a tenant for another period or term.

  1. Possession

1. Possession at Lease Commencement

Under the American Rule, a landlord is not responsible if the tenant cannot take possession because of interference by others, such as the prior tenant. The English Rule requires the landlord to deliver actual possession to the tenant.

2. Possession Throughout the Term

The covenant of quiet enjoyment, which is implied in every lease, imposes a duty on the landlord not to interfere with the tenant’s possession during the term. A landlord is not responsible for interferences caused by strangers but is responsible if the tenant is evicted by a paramount title holder, by the landlord, or by the landlord’s agents. The tenant’s rent obligation is dependent on the covenant of quiet enjoyment. Therefore, a tenant is excused from further rent liability if the landlord or a paramount title holder evicts him.

3. Abandonment

At common law, if a tenant abandoned the premises during the term, the landlord was entitled to recover the rent from the tenant as it came due and had no duty to mitigate. Alternatively, the landlord could elect to treat the abandonment as an offer to surrender the leasehold estate and could accept it by retaking possession for her own account. As a third remedy, the landlord could treat the abandonment as empowering her to act as the tenant’s agent to relet the premises for the tenant’s account. The landlord could hold the tenant liable for the difference between the amount received on reletting and the rent due under the lease. Some jurisdictions now permit a landlord to sue the tenant, immediately following his abandonment, for damages equal to the lost benefit of the bargain (the difference between rent reserved and the rental value for the balance of the term).

4. Holding Over

When a tenant wrongfully holds over after the expiration of his term, the landlord may elect to remove him or to compel him to remain for another term or period. If a landlord elects to treat the tenant as a trespasser, she generally cannot use self-help to recover possession but must bring an action to evict the tenant. Statutory summary dispossess or unlawful detainer procedures are available in every jurisdiction for this purpose. Alternatively, the landlord may compel the holdover tenant to remain, usually as a periodic tenant based on the original lease term or on the period for which rent was paid or calculated. Until the landlord makes an election, the holdover tenant is a tenant at sufferance.

D. Rent

If a tenant fails to pay the required rent, the landlord may sue for the rent and may terminate the tenancy and bring an action to evict the tenant. The landlord’s right to retain an advance payment by the tenant depends on whether it was a security deposit to cover actual losses, payment of advance rent to cover specified future periods, or a bonus given to the landlord as consideration for executing the lease.

E. Condition of the Premises

1. Common Law

At common law, a landlord had no duty to repair either pre-existing or subsequently arising defects in the property and had to disclose only hidden (latent) defects. The tenant had an obligation to avoid waste. If the premises were destroyed or significantly damaged by some outside cause, neither party had a duty to repair or to rebuild, and neither was entitled to terminate the lease. The parties could alter their positions by lease covenants.

2. Constructive Eviction

If a landlord fails to perform its duty to repair the premises and if the disrepair substantially interferes with the tenant’s enjoyment of the premises, the tenant may claim that he has been constructively evicted and may quit the premises and terminate the lease. However, the tenant must show that the landlord was under an obligation to repair, that the disrepair substantially impaired the tenant’s enjoyment of the premises, and that the tenant moved out within a reasonable time. If a court disagrees with the tenant, he wrongfully abandoned the premises and continues to owe rent.

3. Illegal Lease

Some courts hold that the rental of premises that violate the housing code constitutes an illegal agreement, which is invalid. The tenant can leave at any time.

4. Statutory Duties

Most states now require owners of residential premises to keep them habitable. Some states authorize the tenant to make the repairs and to deduct the cost from the rent, to withhold rent until the repairs are made, or to have a receiver appointed to make the repairs. Many states prohibit a landlord from evicting a tenant in retaliation for exercising repair rights or from requiring a tenant to waive these rights.

5. Implied Warranty of Habitability

In most states, a landlord of residential premises impliedly warrants their physical condition for the entire lease term. If the warranty is breached, some states allow a tenant to remain in possession and to pay a reduced rent (rent abatement). Other states limit the tenant to a cause of action for damages.

6. Tort Liability

At common law, the tenant’s possession of the premises eliminated the landlord’s liability for personal injuries caused by defective conditions subject to a few exceptions. (1) A landlord is liable for personal injuries caused by latent defects known to her and not disclosed to the tenant. She also may be liable under this theory for injuries to third persons. (2) A landlord is liable for injuries suffered by tenants and third persons in the common areas, because she is deemed to possess them. In some jurisdictions, courts have extended this exception to include harm resulting from criminal activities occurring in the common areas. (3) A landlord is liable for her negligent repairs and for failing to make repairs when she has covenanted to do so. (4) Many courts now treat local housing and building codes as safety ordinances and hold a landlord liable for injuries arising from code violations. Some courts now hold landlords to the usual tort standard of exercising due care under the circumstances, rather than limiting the landlord’s duty to the common law exceptions described above. Courts often hold that lease clauses exculpating the landlord from liability for injuries are invalid and ineffective against injured third parties.

F. Transfers

1. Right to Transfer

A tenancy is transferable unless the lease provides otherwise. A landlord may prohibit transfers or may require the tenant to obtain the landlord’s prior consent. The landlord generally has no duty to act in good faith when granting or withholding consent, unless the lease provides otherwise. A no-assignment clause usually operates as a forfeiture restraint, which entitles the landlord to terminate the lease if an improper transfer has been made.

2. Kinds of Transfers

A tenancy may be assigned or sublet. An assignment occurs when the tenant transfers his entire remaining lease term. A sublease occurs when the tenant transfers less than the entire remaining term. In some jurisdictions, the distinction is made based on the parties’ intent. A landlord may transfer the reversion.

  1. Effect of Transfer

a) Assignment

If a tenant assigns, the assignee is in privity of estate with the landlord, and the assignee and landlord can enforce the lease’s real covenants against each other. The tenant and landlord remain in privity of contract. An assignee who assigns his interest no longer has privity of estate with the landlord and, therefore, no longer is liable for the rent, unless he assumed the lease obligations. The most recent assignee now has privity of estate with the landlord.

b) Sublease

A sublease creates neither privity of estate nor privity of contract between the subtenant and the landlord. The subtenant is not bound or benefited by the covenants in the lease. The sublessor and sublessee are in privity of estate and privity of contract. The sublease terminates if the lease terminates because the sublessee no longer can possess the property.

G. Discrimination in Leasing

A variety of federal, state, and local laws prohibit class-based discrimination in the leasing of property. The equal protection clause of the Constitution and § 1982 of the Civil Rights Act of 1866 both prohibit such discrimination, but their effectiveness as a tool to combat discrimination is hampered by the necessity of proving discriminatory intent. Moreover, § 1982 applies only to racial discrimination, and the equal protection clause is effectively limited to protecting only members of suspect and quasi-suspect classes and applies only if state action exists. In contrast, the federal Fair Housing Act and a variety of state and local laws prohibit discrimination against a variety of classes of people, applies to private persons, and may require proof of only a discriminatory effect, rather than of discriminatory intent.


A. Definitions

An easement is a nonpossessory right to use another’s land for a limited purpose. The easement holder is the dominant tenant, and his land is the dominant estate (also called the dominant tenement). The owner whose land is subject to the easement is the servient tenant, and his land is the servient estate (also called the servient tenement). An easement is appurtenant when it benefits land. It is in gross when it benefits a specified person. An affirmative easement entitles the dominant tenant to use the servient estate for a particular purpose. A negative easement entitles the dominant tenant to prohibit the servient tenant from engaging in otherwise privileged activity on his land. If the use is revocable at will, it is a license, rather than an easement.

A profit authorizes its holder to enter another’s land to remove a natural product, such as timber.

B. Creation

1. Express Language

A grantor may convey an easement to another person or may reserve one for herself on land that she is conveying to another. If the interest is granted orally, it usually is a license and is revocable at will unless the grantor is estopped from so doing by virtue of the grantee’s detrimental reliance. At common law, an easement could not be reserved in favor of a third party to a deed.

2. By Implication

When one part of a parcel of land is used for the benefit of another part, a physical division of the parcel may create an easement by implication. The use must have been apparent, continuous, and beneficial (or necessary, if an implied reservation is claimed). When severance landlocks a parcel, an easement of necessity may be implied even if no prior use existed.

3. Prescription

Adverse use of another’s land may create a prescriptive easement. Unlike adverse possession, the prescriptive use need not have excluded all other activities on the affected land. The servient tenant’s objections do not interrupt a prescriptive use except in jurisdictions that follow the lost grant theory. The use need not be continuous, but, if it is limited or partial in time, the easement will be similarly restricted. A few jurisdictions permit the public to acquire recreational easements through long continued use.

  1. Scope and Variation

1. Express Easements

The document that transfers the easement controls the permitted use. If it is silent concerning the scope of use, the dominant tenant may engage in activities reasonably related to the easement, including those related to the normal development of the dominant estate. The use must not unreasonably burden the servient estate. The dominant estate may not be enlarged.

2. Implied Easements

The circumstances that created an easement by implication determine its scope.

3. Prescriptive Easements

The activities that created a prescriptive easement determine its scope. New and different activities can become privileged if continued for the time period for prescription.

4. Use by the Servient Tenant

The servient tenant may engage in any activities on the land that do not unreasonably interfere with the easement. He may permit third parties to use the easement area. He is not entitled to relocate an easement when the instrument that granted it specified its location.

  1. Transfer and Subdivision

1. Burden

An easement’s burden transfers with the servient estate. If the servient estate is subdivided, each parcel is subject to the burden, unless the easement has been confined to one area.

2. Benefit

A transfer of the dominant estate includes the appurtenant easement. When the dominant estate is subdivided, all the lots enjoy the easement’s benefit. At common law, an easement or profit in gross could not be transferred or subdivided. Courts now generally allow transfer of an in gross easement or profit if it is for commercial use, is quantifiable, or requires payments for its use.

E. Termination

An easement ends when (1) its express time period expires, (2) it has been properly revoked, (3) the servient estate has been destroyed, (4) the necessity that created it ends, (5) the dominant and servient estates merge, (6) the dominant tenant reconveys it to the servient tenant or abandons it, (7) the servient tenant recovers it by prescription, or (8) it is forfeited by the dominant tenant’s abuse of it.


A. Nature of Covenants

A covenant running with the land (real covenant) is a promise that can be enforced by the successors to the original covenantee and against the successors to the original covenantor. Its benefits or burdens run automatically without the need for an assignment of rights or delegation of duties.

B. Requirements

1. General Prerequisites

A covenant will not run with the land unless it is enforceable between the original parties, and they must have intended that it run. It must be in writing, and it must “touch and concern” the land.

2. Legal Requirements

For a covenant to “touch and concern” land, it must relate to the property, rather than to its owner personally. A covenant to pay money may be treated as touching and concerning land if the payment is for an act that touches and concerns land, such as maintenance. Some jurisdictions require that only the burden of the covenant touch and concern the land when the burden is to run and that only the benefit of the covenant touch and concern the land when the benefit is to run. Other jurisdictions require that both the burden and benefit touch and concern land for the burden to run.

Some jurisdictions require the covenantor and covenantee to be in privity of estate (horizontal privity). This type of privity requires the covenant to have been created when the affected land was conveyed, but a landlord-tenant relationship or persons sharing other interests in the same property also can satisfy it. Neighbors may exchange covenants that will run with the land only if the jurisdiction does not require horizontal privity.

Some states require that the covenantor’s entire estate pass to her successor for the burden to run and that the covenantee’s entire estate pass to his successor for the benefit to run (vertical privity). Vertical privity also requires an unbroken chain of conveyances from the original covenantor to the current owner of the burdened land and from the original covenantee to the current owner of the benefited land. Vertical privity is destroyed if an adverse possessor acquires title to the land or if a bona fide purchaser without notice of the covenant acquires the land. Some jurisdictions require both horizontal and vertical privities of estate.

C. Equitable Servitudes

For a covenant to run with the land as an equitable servitude, horizontal and vertical privity are unnecessary. However, equity requires that the party to be burdened by a covenant had notice of it when he bought the land. The covenant also still much touch and concern the land, and the original parties must have intended that it run.

  1. Subdivisions

1. Standing

As the original promisee, the subdivider has standing to enforce covenants made by grantees in their deeds to individual lots for as long as the subdivider owns any benefited property. The homeowners’ association generally has standing to enforce those covenants as successor to the title of the common (benefited) land. Individual lot owners may enforce covenants against other owners in the subdivision who acquired title to burdened parcels before them. Lot owners may enforce covenants against owners who purchased after them if they can show that reciprocal burdens were implied from their own covenants, that they are third party beneficiaries of later covenants, or that the subdivider promised them to restrict all retained land.

If the covenants properly were created originally, the fact that later deeds to the burdened lots do not mention them is irrelevant. They will run with the land if the new grantees have actual or constructive notice.

2. Common Plan

If some parcels in the subdivision are unrestricted, a court may hold that other grantees cannot be charged with notice of the restriction, that a theory of implied reciprocal servitudes or of third beneficiary status will not be allowed, or that the covenant is invalid because it burdens an owner who cannot enforce it against others.

E. Termination and Nonenforcement

1. Defenses

A covenant endures only for as long as the creating document or a statute provides. Merger of the benefited and burdened parcels, release, abandonment, waiver, and prescription also can destroy a covenant. A court will not enforce a covenant when changed conditions make the benefit too insubstantial to justify the burden. Acquiescence, estoppel, and laches also are defenses.

2. Government Action

When the government acquires property burdened by a restrictive covenant, it takes title free of the covenant. Covenants on property sold by the government at a tax sale also may be extinguished.



A. Qualifications

Brokers are licensed to negotiate sales, leases, financing, and related real property transactions. Without a license, no person may claim compensation for performing the above services, except for a finder’s fee for merely introducing the parties to one another. Persons working under a broker’s supervision usually are called salespersons and also must be licensed.

B. Listing Agreements

A listing agreement is the employment contract between the broker and the seller. It authorizes the broker to solicit offers to purchase the seller’s property in return for a fee if she is successful. In most states, the listing agreement must be written. The most common types of listing agreements are:

  1. Open (also called Nonexclusive)—The broker earns a commission only if she finds the buyer;
  2. Exclusive Agency—The broker earns a commission even if some other broker finds the buyer; and
  3. Exclusive Right to Sell—The broker earns a commission even if some other broker or the seller finds the buyer.

C. Ready, Willing, and Able Purchaser

A broker generally earns a commission when she produces a ready, willing, and able purchaser. The purchaser must make an offer that matches the terms of the listing agreement or that is otherwise acceptable to the seller. In most states, the agent’s right to a commission vests when the seller and buyer enter into a purchase agreement. If the agreement is subject to any conditions, the agent’s commission right vests when the conditions are eliminated. In a minority of states, the agent’s commission right does not vest unless and until the sale is consummated.

D. Duties

A broker has obligations pursuant to:

  1. Contract—She must perform the obligations that she has undertaken in the listing agreement;
  2. Agency—She is subject to the fiduciary duties of loyalty, integrity, and good faith as an agent to her principal;
  3. Tort Law—She must meet the standards of due care expected of a professional in this field; and
  4. Licensing—She must comply with the duties imposed by the licensing authority.

E. Agency

A listing agreement makes the broker the seller’s agent. It also may make other brokers cooperating under a multiple listing service subagents of the seller, especially when they receive their commissions from the seller. A broker often works under a dual agency arrangement and represents both the seller and buyer in the same transaction.


A. Enforceable Contract

A binding contract for the sale of land must be written and must describe the property, the price, and the parties, although the purchaser may indicate that title is to be taken by a “nominee.” Part performance, consisting of the purchaser taking possession and sometimes paying part of the price or making improvements, may excuse the lack of the writing. A court will imply a reasonable time for performance if the contract does not specify one.

B. Marketable Title

Absent a contrary provision, a contract for the sale of land includes an implied covenant that the purchaser will receive marketable title–title that is free from reasonable doubt as to its validity and as to the existence of any encumbrances or defects. If the vendor owns less than he has contracted to convey, if irregularities in the chain of title exist, or if the property is subject to an encumbrance, it is unmarketable. Land use ordinances and physical defects in the property do not affect title, and monetary encumbrances may be removed by using part of the purchase price to satisfy them. If title is unmarketable at the time for closing, the purchaser may refuse to perform or may be granted specific performance with an abatement of the purchase price.

C. Equitable Conversion

Once the vendor and purchaser have executed a specifically enforceable contract, the purchaser becomes the equitable owner of the property, and the vendor holds legal title only as security for the purchase price. Courts that follow this doctrine hold that the purchaser bears the risk of innocent destruction of the premises. However, other courts imply a provision into the contract that the purchaser will receive the property in the same condition as when the contract was executed, unless the purchaser has taken possession. The parties may insure themselves against risk of loss or may contract as to the allocation of risk.

D. Performance

The vendor performs by tendering a valid deed. The purchaser performs by paying the contract price. Once the parties perform the contract, its provisions end (merge) and are replaced by any covenants in the deed. However, the purchaser may have subsequent rights against the vendor for fraud or based on the warranty of habitability.

E. Breach

Unless time is of the essence, both parties have a reasonable time after the specified closing date to perform. If either party fails to perform, the other may terminate the contract or sue for specific performance or damages.


A. Formal Requirements

1. Writing

A deed must identify the grantor and grantee and adequately must describe the property. It also must include words indicating the grantor’s intent to transfer title to the property. The grantee need not sign the deed, and the signatures usually need not be notarized. Recording and consideration also are unnecessary for the deed to be valid between its parties.

Parol evidence may resolve ambiguities in the legal description of the land. When internal inconsistencies exist, monuments prevail over courses and distances, which prevail over names and quantities. Generally, reference to a boundary with width, such as a road, extends to its center. Boundary lines may change where a waterway is involved as the course of the waterway changes. Condominium boundaries include altitude as well as surface location and exclude the exterior walls, which are part of the common areas.

When neighbors orally relocate a common boundary, their agreement is upheld if it resulted from uncertainty or disagreement but not if it resulted from mistake or conscious intent to change the line.

2. Deed Types

A deed that contains no title covenants is a quitclaim deed. A general warranty deed contains all six common law title covenants. A grant or limited warranty deed contains some, but not all, of the title covenants, or the covenants apply only to the grantor’s period of ownership.

B. Delivery

A deed transfers title only when the grantor delivers it. To deliver a deed in the legal sense, the grantor must manifest an intent that a completed legal act has occurred. If the grantor intends instead that title pass only in the future, delivery has not occurred. In transactions involving only the grantor and grantee, the grantor’s conditional delivery means either that delivery has not occurred or that title passes absolutely without the condition. A grantor may make a future or conditional transfer of title by employing an escrow agent and unconditionally delivering the deed to her with instructions to deliver it to the grantee at the later time. In that case, the escrow agent’s delivery relates back to the grantor’s delivery to the escrow agent.


A. Priority Disputes

The recording act principle of protecting bona fide purchasers has replaced the common law principle of “first in time, first in right.” The prior grantee of a deed or other conveyancing instrument may lose priority to a subsequent grantee by failing to record. This rule permits potential purchasers of land to rely on the chain of title as shown in the public property records.

B. Recording Acts

1. Recordable Documents

Any instrument affecting title to land may be copied into the official records and indexed according to the names of the grantor and grantee or according to the property’s description. These indexes permit a title searcher to trace the title from its current owner back to the original source and then determine what interests, such as easements and mortgages, encumber the title.

2. Types of Acts

The two most common recording acts are notice acts, which protect a subsequent purchaser who takes without notice of an unrecorded instrument, and race-notice acts, which protect a subsequent purchaser who takes without notice and records first. Race statutes, which protect the purchaser who records first, and period of grace statutes exist in a few states.

3. Value

Most recording acts protect only subsequent grantees who have given value. Grantees are protected if they gave more than a nominal consideration. Donees, unsecured creditors, judgment creditors, and persons who have merely promised to pay are not protected. Execution of a negotiable note that has been transferred to a holder in due course and cancellation of a prior debt qualify as paying value. When the grantee has paid only part of the price, she has pro tanto protection. The purchaser at an execution sale is protected as a purchaser for value, although the jurisdictions are divided when that person also is the judgment creditor.

4. Notice

Subsequent purchasers who have notice of a prior conveyance are not protected against it. “Notice” includes actual knowledge and constructive notice from the property records. Misindexed documents and “wild” documents (those not linked to any instrument in the chain of title) generally do not give notice. The jurisdictions are divided concerning whether instruments recorded after the owner transferred title, before he acquired title, or that relate to other property owned by him, give notice. Courts impose a duty on prospective purchasers to make inquiries about any suspicious information concerning the title and to inspect the property and impute to him any knowledge that a reasonable inquiry would have produced. Thus, a purchaser must investigate defectively recorded instruments, unrecorded instruments that are mentioned in recorded instruments, and rights of persons in possession of property, unless their possession is consistent with the record title.

C. Torrens Registration

Torrens registration is based on the premise that the government should certify the title to a parcel of land, as it does for cars, rather than simply serving as a repository for documents concerning it. To register a parcel of land in the Torrens system, the owner brings a quiet title-like action in which the title is determined. Thereafter, with limited exception, no one owns an interest in that parcel unless it is shown on the certificate of title that the government issues. The government is liable for any title mistakes it makes with respect to the registered land.


A. Title Covenants

1. Deed Types

A quitclaim deed contains no covenants of title. A grant deed or limited warranty deed has limited title covenants. A general warranty deed includes all the common law title covenants.

2. Deed Covenants

The present title covenants are the covenants of seisin, right to convey, and against encumbrances. These warrant that the grantor has the title he is purporting to convey and that he has the power to transfer it is free of all encumbrances, except those expressly or impliedly excluded. The future covenants are the covenants of quiet enjoyment, warranty, and further assurances. These warrant that the grantee will not be evicted by a paramount interest holder and that the grantor will execute any additional document necessary to perfect the transfer of title.

3. Breach of Covenant

The present covenants are breached, if ever, when the conveyance is made. The future covenants are breached only when the grantee is injured by a conflicting title interest. Future covenants run with the land and may be enforced against the covenantor by a remote grantee. The measure of damages may be the purchase price, the cost of removing the encumbrance, or the depreciation in market value caused by the encumbrance.

B. Title Insurance

Title insurance guarantees that the insured owns the title described in the policy, subject only to the defects described in the insurance policy. The policy generally excludes claims that exist because the insured was not a bona fide purchaser or that could have been ascertained from a physical inspection of the property, including boundaries (“matters of survey”). The policy does insure against“off-record” risks, such as a grantor’s legal incompetence, forgery, and nondelivery of any document in the chain of title. When a title insurance company is liable, it may compensate the insured for the loss, acquire the outstanding claim against the title, or challenge it in court.


A mortgage is a security instrument that authorizes a lender (the mortgagee) to sell the mortgaged land (foreclose) to satisfy a debt if the borrower (the mortgagor) defaults.

A. Documentation

The mortgage secures the debt, which is evidenced by a promissory note. In some states, lenders more commonly use a deed of trust, rather than a mortgage. The only significant difference between them is that a deed of trust appoints someone other than the lender (a trustee) to conduct the foreclosure.

B. Foreclosure

The mortgagor and junior lienors have an equity of redemption that enables them to pay a defaulted loan in full to prevent foreclosure. If they do not exercise this right, the mortgagee can have the mortgaged property sold to satisfy the obligation. Any surplus from a foreclosure sale goes to any junior lienors, because their liens are eliminated by the foreclosure, and then to the owner. If the sale does not produce enough proceeds to pay the foreclosed debt in full, the foreclosing mortgagee can sue for the difference between the debt and the foreclosure sale price (the deficiency), unless the jurisdiction has antideficiency legislation. If any rents from the property have been given as additional security, the lender also may collect them and apply them to the debt.

C. Junior Mortgages

When a junior mortgage is foreclosed, the land is sold subject to the senior liens. A junior mortgage is eliminated by a senior foreclosure sale. The junior mortgagee receives any surplus from the senior sale in preference to the mortgagor.

D. Transfers

Property subject to a mortgage is transferred subject to it. If the grantee assumes the secured debt, she becomes personally liable for it. If she does not assume liability, she merely takes “subject to” the mortgage. A transfer of the note always includes the mortgage, even if it was not expressly assigned.



A. Water

1. Stream Water

A riparian owner has an absolute right to use water when it does not affect the water’s flow or is used solely for domestic purposes. If the flow is affected and the use is nondomestic, the natural flow doctrine permits downstream users to enjoin the use, whereas the reasonable use doctrine balances the intended uses of the conflicting riparian owners. Western states follow the prior appropriation doctrine and grant permits to take water depending on the time of application and the intended use.

2. Underground Water

The absolute ownership rule allows surface owners to make any use of underground water as long as it is not malicious. The reasonable use rule limits surface owners to reasonable uses of the water.

3. Surface Water

The natural servitude rule prohibits landowners from diverting water that flows over their land. The common enemy rule allows owners to alter their land to drain water from it. The reasonable use rule allows owners to divert water as long as it does not unreasonably interfere with their neighbors’ use of their land.

B. Oil and Gas

Traditionally, underground oil and gas were viewed as being analogous to wild animals. Because neither oil nor gas was within anyone’s control and because both generally move about freely, the first person to extract them becomes the owner. In more recent times, legislation generally has preempted the common law rule of capture, and some courts have adopted the “fair share rule,” which limits an extractor to a fair share of the oil or gas.

  1. Support

1. Lateral Support

A landowner whose excavations cause neighboring land to subside is liable regardless of negligence unless he can show that the land subsided only because of the additional weight of improvements erected on it. If the excavator is liable, states are divided over whether compensation must be paid for the improvements.

2. Subjacent Support

An excavator is absolutely liable for injuries to land and buildings caused by the removal of subjacent support.

3. Modifications

Landowners may agree that one will furnish additional support to another’s improvements or, conversely, that no duty of support is owed. Some jurisdictions require excavators to shore up neighboring buildings.

  1. Freedom from Interference

1. Trespass

Trespass is an unprivileged intrusion upon another’s land. It is actionable because it interferes with an owner’s right to exclusive possession. Even without harm, a trespasser is liable for at least nominal damages.

2. Nuisance

A nuisance is an unreasonable use that substantially interferes with the use and enjoyment of another’s land. Determination of whether a nuisance exists usually requires a balancing of the utility of the parties’ actions, a comparison of the harm against the cost of correction, and a consideration of the nature of the locale.

E. Airspace

1. Use Rights

Title and the right to develop airspace may be severed from the surface. Absent severance of the airspace, the owner of the surface has the right to use it.

2. Invasions

Surface owners generally do not have a cause of action against flights in the public airspace above their lands. However, an overflight may constitute a trespass if it is too low, a nuisance if it creates too much disturbance, or a taking if the government operates the aircraft or the airport.

F. Fixtures

Personal property becomes real property when it is affixed to land with an intention that it become a permanent part of land and when it is specifically adapted to the land. When the same person owns both the land and the personalty, the personalty’s conversion to a fixture may be significant because of inheritance laws, a mortgage on the property, property taxation, or an exercise of eminent domain. When the fixture is owned by someone other than the owner, such as by a tenant, the most significant issue usually is whether the fixture’s owner can remove it.

G. Waste

The owner of a presently possessory interest in land that is less than a fee simple absolute owes a duty to the future interest owners and to concurrent owners not to harm the property by affirmatively damaging it or by failing to make normal repairs to protect it from deterioration.


A. Authority to Regulate

Land use regulation is a state power that the state delegates to cities and counties. Some states also permit direct voter regulation by initiative or referendum.

B. Forms of Regulation

1. Planning

A comprehensive plan prepared by the local planning board often is a legal prerequisite to the enactment of land use laws. The plan consists of the community’s goals and purposes concerning its physical development.

2. Zoning

A typical zoning ordinance divides the land it governs into use, height, and area districts. It regulates the size of land lots and buildings by minimum floor space, minimum lot size, floor to area ratio, open space, and setback requirements. “Cluster zoning” permits the owner of a large parcel to violate the usual area requirements if the standards are satisfied by the aggregate project. The “planned unit development” zoning classification may allow a mix of uses, as well as a clustering of density. For a “floating zone,” the zoning ordinance describes the permitted uses but does not place any land in that category until an owner successfully seeks a rezoning for it. A “holding zone” temporarily prohibits intensive use of land while the community plans for the future.

Most zoning ordinances are cumulative; less intense uses, such as single family homes, are permitted in more intense zones, such as commercial. Zoning ordinances generally also include provisions for conditional uses (also known as special exceptions)—uses that are allowed in a zoning district only after discretionary review and the possible imposition of conditions. Zoning codes generally permit pre-existing uses to continue as nonconforming uses but may prohibit enlargement of those uses or their resumption after discontinuance for a period of time or may amortize such uses by permitting them to continue for only a limited number of years. Variances are available to property owners who otherwise would suffer unnecessary hardship because of special circumstances affecting their land. The local legislative body may amend its zoning ordinance as to any particular parcel. Contract or conditional rezoning involves a zoning amendment based on the landowner’s agreement to specified conditions.

3. Subdivision Regulation

A local government may require a subdivider to dedicate streets in the subdivision to the public, to construct off-site improvements, or to dedicate land or to pay a fee for public uses, such as parks and schools.

4. Other Forms of Regulation

A local government may control the growth of its community by a building moratorium or by limiting the number of building permits it issues. It may protect historic buildings or districts by prohibiting construction, reconstruction, or demolition of structures. It may regulate the size and placement of billboards, although its right to ban them totally unclear. It can delegate architectural approval to a design review board. Federal and state environmental protection acts may require a local government to consider and to mitigate adverse environmental impacts created by projects that it has the right to approve.

  1. Judicial Review

1. Legislative v. Administrative (Quasi-judicial)

If a court determines that a particular action by a local government is legislative, the court will uphold it if it bears a rational relationship to a permissible state objective. If the action is administrative (quasi-judicial), substantial evidence must support it. Many courts reject the distinction between legislative and administrative actions. Additionally, a court will subject a land use action to more searching review if it is directed at a suspect or quasi-suspect class or if it impinges on a fundamental right.

2. Judicial Standard

A court will invalidate a land use regulation if it is not authorized by the state enabling act (ultra vires), involves an improper or standardless delegation of legislative power, is arbitrary, or was enacted or administered by improper procedures.

A court also will invalidate a regulation if it violates the federal or state constitution. For example, a court will invalidate an ordinance if it violates the first amendment, such as by overregulating signs, movie theaters, or churches or by intruding too far into family living arrangements. The just compensation clause of the fifth amendment requires compensation when a regulation is so oppressive that it takes the owner’s property. Equal protection principles may invalidate land use systems that exclude lower and middle income persons from residing in the community.

3. Remedies

When a landowner successfully challenges a land use regulation, the court will invalidate the law but usually will not award damages. In

Constitutional Law




Jurisdiction is the power to hear a case. In addition to jurisdictional rules, there are prudential principles limiting the occasions when a federal court will decide a case on the merits. If jurisdiction is present and these prudential limits are overcome, courts can exercise the power of judicial review.

A. Establishing Judicial Review

1. Judicial Review Defined

Judicial review is the doctrine that the courts have the power to invalidate governmental action which is repugnant to the Constitution.

2. Review of Federal Action

While there is no explicit textual authority for federal court review of the acts of the President and the Congress, this power has been inferred from a number of sources, including the Art. III grant of judicial power to the Supreme Court and inferior federal courts and the principle that it is the judicial power to say what the law, i.e., the Constitution, is.

3. Review of State Action

  1. The Supremacy Clause of Art. VI establishes federal judicial power over the acts of state officials.
  2. VI requires state courts to make decisions in conformity with the U.S. Constitution. These “cases arising under the Constitution” are reviewable by the Supreme Court under Art. III.

B. Source of Judicial Power: Article III Jurisdiction

The “judicial power” is vested by Art. III in the Supreme Court and inferior federal courts created by Congress.

1. Federal “Judicial Power” Defined

  1. Unless a case falls within one of the “cases or controversies” identified in Art. III, § 2, an Art. III federal court (as distinguished from an Art. I court) must dismiss the case for want of subject matter jurisdiction.
  2. Congress exercises broad powers over the existence and jurisdiction of lower national courts, within the limits provided by Art. III.
  3. Supreme Court Jurisdiction

a. Original Jurisdiction

Supreme Court original jurisdiction is defined by Art. III. It cannot be enlarged or diminished by Congress.

b. Appellate Jurisdiction—Congressional Power

The Supreme Court’s appellate jurisdiction is vested by Art. III subject to congressional exceptions. This congressional power may be subject to limitations arising from separation of powers principles and constitutional rights and liberties.

c. Discretionary Review

Supreme Court review of lower court decisions is almost entirely a matter of discretion.

C. Constitutional and Policy Limitations on Judicial Review

Even where an issue concerns the subject matter set forth in Art. III, it may not necessarily be heard on the merits. For example, Art. III requires that a “case or controversy” must be present for an Art. III court to have jurisdiction. Further, there are prudential limitations borne of judicial self-restraint limiting the use of judicial review. The jurisdictional requirements and policy restraints are frequently referred to as justiciability.

  1. Constitutional Limitations

a. Eleventh Amendment

The Eleventh Amendment, as interpreted, provides that the judicial power does not extend to suits against a state or its agencies by citizens of another state or of a foreign country or by its own citizens. However, there are exceptions:

  • local governmental units are not covered;
  • states may waive sovereign immunity if clearly done;
  • acting under the Fourteenth Amendment, § 5, Congress can grant remedies against state action that violates the Fourteenth Amendment, § 1, if it makes its intent to abrogate state immunity unmistakably clear. The Court has become increasingly restrictive in its interpretation of Congress’ enforcement powers under the Fourteenth Amendment, § 5. Congress may not abrogate Eleventh Amendment immunity using its Commerce Powers;
  • unconstitutional acts of state officials are not state acts and may be enjoined by federal courts. But, if a suit involves a retroactive monetary charge against the state or violation of state law, the Eleventh Amendment is a bar. Prospective relief and ancillary relief are permitted.

b. Case or Controversy

A case must be in an adversary form and a context that is capable of judicial resolution and its resolution must not violate separation of powers principles, or an Art. III federal court lacks jurisdiction. Art. III federal courts cannot furnish advisory opinions.

2. Policy Limitations (Judicial Self–Restraint)

  1. Rules for Constitutional Review. The Ashwander rules are used to avoid unnecessary constitutional decisions.
  2. Presumption of Constitutionality.
  3. Judicial Restraint to Avoid Unnecessary Use of Judicial Review. The Court follows a policy of “strict necessity” before deciding constitutional questions.
  4. Congressional legislation can override prudential (ie., non-jurisdictional) limitations.

D. Specific Doctrines Limiting Judicial Review

There are specific doctrines, based on the case or controversy requirement and judicial self-restraint, through which Art. III federal courts determine who may litigate a constitutional question, when the constitutional question may be litigated, and what constitutional questions may be litigated.

  1. The Standing Limitation—Who Can Litigate?

a. Constitutional Standing

(1) Art. III requires that a plaintiff seeking to litigate a federal constitutional question demonstrate a personal stake in the outcome by establishing (1) injury in fact; (2) fairly traceable to the defendant’s act being challenged; and, (3) redressable by the requested remedy. This assures the requisite adversity and reflects separation of powers concerns.

  • “Injury in Fact.” Any significant factual injury, economic, aesthetic, etc., will suffice. The injury must be “concrete and particularized and actual or imminent, not conjectural or hypothetical.”
  • “Fairly Traceable.” Plaintiffs must establish causation by showing that the injury is “fairly traceable” to the defendant’s action being challenged.
  • They must also demonstrate a “substantial likelihood” that the injury is “redressable” if the court grants the requested relief. The focus is on the relation of the injury and the remedy.
  • Taxpayer and Citizen Standing
    • Federal Taxpayers. A federal taxpayer must allege (1) that the enactment being challenged is an exercise of the taxing and spending power, and (2) that the challenged enactment offends a specific limitation on the taxing and spending power.
    • State and Municipal Taxpayers. State taxpayers have no standing under Art. III to challenge state tax or spending decisions simply by virtue as their standing as taxpayers. But a municipal taxpayer does have standing to challenge municipal spending because the injury is more direct.
    • Citizen Standing. At least in the absence of congressional legislation authorizing the suit, under Art. III standing a citizen lacks a sufficient personal interest to raise the constitutional claim.
    • State Standing. A State does not have standing to sue the federal government as parens patriae on behalf of its citizens. A State may sue the federal government on its own behalf to protect its own interests.
  • Statutory Standing

Congress can, by statute, create legal interests, the denial of which constitute injury in fact. However, Congress cannot ignore the Art. III standing requirements of injury in fact, and causation, i.e., fairly traceable and redressability. Congress can remove prudential obstacles to standing.

b. Prudential Standing

  • Third Party Standing. A litigant usually lacks standing to raise the rights of others, but there are exceptions.

(a) The jus tertii rule is a rule of judicial self-restraint which can be overcome when the balance of interests warrants hearing the claim.

  • Associational Standing. An association can raise the rights of its members if the members have Art. III standing to sue in their own right, the suit is germane to the organization’s interests and there is no need for individual participation.
  1. The Timing Limitation—When Can Constitutional Litigation Be Brought

a. Mootness

Art. III requires dismissal of a case when, because of changes, the court’s determination of the legal issue cannot have any practical effect in achieving the desired result. But there are exceptions to the doctrine:

  • voluntary cessation of the allegedly illegal conduct;
  • unsettled collateral consequences;
  • there is a reasonable likelihood that the constitutional issue is “capable of repetition, yet evading review.”

b. Ripeness, Prematurity and Abstractness

  • The Art. III requirement of ripeness requires that there be present injury or an imminent threat of injury. In determining if a case is ripe, consider the effect of delay on plaintiffs, the effect of judicial intervention on administrative actors, and whether courts would benefit from the delay.
  • Even if jurisdiction is technically present, judicial self-restraint may dictate dismissal of issues as premature and abstract.
  1. Discretionary Abstention

(1) Vagueness

If a state statute is capable of a narrow saving construction, federal courts should exercise restraint and abstain from decisions on constitutional issues.

(2) Pending State Proceedings

Absent a showing of bad faith harassment, a federal court should abstain in a suit seeking declaratory or injunctive relief if state criminal or analogous civil proceedings are pending.

  1. The Subject Matter Limitation—What Can Be Litigated

a. The Political Question Doctrine

Political questions, which are non-justiciable, have their origin in classic, functional, and prudential considerations.

  • Constitutional commitment to another branch;
  • lack of judicial resources and capabilities for deciding the case;
  • prudential or policy considerations relating to the proper use of judicial power.

b. Adequate and Independent State Grounds

Where adequate and independent substantive or procedural state grounds for a lower court decision clearly exist, the Supreme Court will decline to exercise jurisdiction.


Congress has only such powers as are granted by the Constitution. Under the Tenth Amendment, powers not granted to the national government are retained by the states and the people. The crucial inquiry is whether there is a constitutional source of power for congressional legislation.

A. The Scope of the National Legislative Power

  1. Express Powers

Art. I, § 8, expressly grants specific powers to Congress.

2. Implied Powers

Under the Necessary and Proper Clause of Art. I, § 8, Congress can enact laws which are reasonably designed to achieve its delegated powers.

3. Inherent Powers

Congress has no inherent domestic legislative powers. This does not preclude the existence of inherent foreign affairs powers.

4. Delegation of Powers

Congress can delegate legislative authority so long as it prescribes some standards to guide use of the granted powers.

5. The Tenth Amendment

Powers that were previously exercised by the states which are not delegated are reserved to the states or to the people. There has been persistent controversy over whether the Tenth Amendment is a substantive limitation on Congress’ ability to legislate as to private parties and the states.

6. The Supremacy Clause

Art. IV, cl. 2 establishes that national laws that are constitutional override contrary state laws.

B. Commerce Power

1. Definition

Congress has power to regulate “commerce among the states” which has come to mean interstate commerce. However, the commerce power provides the basis for congressional regulation even of local intrastate activities.

2. Achieving Social Welfare Objectives—A National Police Power

Congress’ power to regulate the channels and instrumentalities of interstate commerce and persons and things in interstate commerce is plenary, permitting it to prescribe rules for the protection of commerce. Courts will not probe Congress’ purpose in regulating interstate commerce.

  1. While there is no national police power, Congress can achieve social welfare objectives through regulating interstate commerce. If Congress exercises its delegated powers, it may regulate matters traditionally regulated by the states.
  2. Tenth Amendment. When Congress regulates private action, the Tenth Amendment is not a significant limitation on Congress’ regulatory power.

3. Stream of Commerce

Local activities can be regulated if they are part of the “stream” of interstate commerce.

4. Instrumentalities of Commerce

Congress’ plenary power to regulate and protect interstate commerce extends even to local activities that threaten the instrumentalities of interstate commerce and persons and things in interstate commerce.

  1. The Affectation Doctrine

a. Substantial Effects

  • Under the Necessary and Proper Clause, Congress can regulate local activities if it can rationally conclude that such activity has a substantial effect on interstate commerce. The courts generally defer to the congressional judgment.
  • In assessing the effect, Congress may consider the cumulative or aggregate impact of all regulated activities.
  • “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Gonzalez v. Raich (2005).

b. New Restrictions

There are limits. Consider if the matter regulated is commercial, if there is a jurisdictional nexus to interstate commerce, if there is congressional fact finding, and if the causal relation between the regulated act is remote or attenuated, including whether the regulation intrudes on areas of traditional state concern.

C. The Taxing Power

Congress has the fiscal power of raising monies through taxes. However, this is not a regulatory power and “penalties” may not be imposed in the guise of taxes.

  1. Courts today tend to accept any tax as a fiscal measure if, on its face, it is a revenue producing measure.
  2. Disclosure requirements will not make a tax into a penalty but such provisions raise problems of self-incrimination.
  3. The Spending Power

Congress can spend, but cannot regulate, for the general welfare.

1. General Welfare

The Spending Clause of Art. I, § 8, cl. 1, is an independent fiscal power to spend for general welfare objectives. It is not limited to the regulatory powers of Art. I, § 8. Congress determines the scope of the general welfare.

2. Reasonable Conditions

Congress may impose any reasonable conditions for participation in federal spending programs even if this induces states to conform to federal standards. The courts defer to Congress’ judgment of reasonableness. Such conditions must be explicitly stated so that states can make informed choices.

3. Constitutional Limitations

The Tenth Amendment is not likely to be a barrier to congressional spending so long as the states remain free to reject the federal grant and its conditions.

4. Spending as a Contract: Explicit Conditions

Conditions on federal grants must be clear and unambiguous to be enforced.

E. Intergovernmental Immunities

The national government has greater immunity from state regulation and taxation and greater power to tax and regulate state functions (Art. VI Supremacy Clause).

1. State Taxation and Regulation

States cannot directly tax or regulate the federal government or federal instrumentalities. They cannot discriminate against the federal government or those who deal with the federal government.

  1. Federal Taxation and Regulation

a. Federal Taxation of States

Non-discriminatory federal taxes, which reasonably reflect the benefits provided the state, are constitutional.

b. Federal Regulation of States

  • State Sovereignty Limitation. Principles of state sovereignty, reflected in the Tenth Amendment, limit Congress’ Commerce Clause power to regulate state activities.
  • In National League of Cities, subsequently overruled, the national interest in including the states under the regulation was balanced against the intrusion on state sovereignty. Three conditions were used in determining if state sovereignty was violated:
    • “States as states” (Direct regulation of state or its agencies); (b) “Traditional state functions”;

(c) Impairment of state ability “to structure integral operations in areas of traditional functions”.

  • Today, if Congress enacts a law generally applicable to private parties and the states, there is only a minimal state sovereignty limitation. The Tenth Amendment and principles of state sovereignty, embodied in our constitutional structure, impose only minimal limits on congressional power, assuming that the national political process is functioning.
    • Federal courts should not determine what are “traditional” or “integral” functions of state government.
    • It is the structure of the federal government itself that protects federalism.
  • But if congressional regulations impose special burdens on states, state sovereignty and the Tenth Amendment impose limitations. Congress cannot constitutionally command states to regulate or to enforce a federal regulatory program, since this would undermine political accountability and dual sovereignty. In such cases, there is no judicial balancing of national and state interests. But Congress can require states to regulate or face preemption by a federal program.


States have inherent police power to legislate for the public health, morals, and well-being of its citizens. But this power is limited by the constitutional division of powers. The people of the entire nation, through the Tenth Amendment, reserved to the states only such powers as they had prior to ratification.

A. State Power to Regulate Commerce

1. Establishing the Foundations

Where a subject requires national regulation or where the particular state regulation would excessively burden interstate commerce, the state may not regulate absent congressional authorization.

  1. The Nature of the Power

The commerce power is, at least partially, a concurrent power.

b. The Nature of the Subject—Cooley Doctrine

When subjects of commerce regulation are national in nature, i.e., require a uniform system or plan of regulation, they are not amenable to state regulation. Cooley v. Board of Wardens (1851).

2. The Modern Focus: The Dormant Commerce Clause

The Dormant Commerce Clause, as interpreted by the courts, limits state power to enact regulations affecting interstate commerce. States may not discriminate against interstate commerce absent substantial justification. Nor may states place unreasonable burdens on interstate commerce.

a. Rationale

  • Common Market Philosophy. No trade barriers.
  • Lack of political protection for out-of-state interests.

b. Discrimination

If a state regulation is labeled “discriminatory” against interstate commerce, it is likely to be held unconstitutional. Economic protectionism violates the Dormant Commerce Clause. But laws which benefit public entities over private entities, yet which treat all private companies the same, do not discriminate against interstate commerce.

(1) Intentional Discrimination

A state law which purposefully discriminates against interstate commerce, e.g., by hoarding scarce resources against import or export to other states, is virtually per se invalid.

(2) Discriminatory Means and Effects

Even if a state law serves a legitimate police power objective, the law must regulate evenhandedly. Differential treatment favoring in-state against out-of-state interests constitutes discrimination. A local regulation may be discriminatory even if it curtails commerce by other state subdivisions as well as out-of-state interests. A law using discriminatory means or having a discriminatory impact must serve a legitimate local purpose that cannot be served as well by nondiscriminatory means. Watch for the following:

  • Extraterritorial operation of state laws;
  • Facial or factual imposition of unequal burdens or benefits;
  • But differential impact or effects may be due to market structure rather than discriminatory laws.

c. Undue Burdens—Ad Hoc Balancing

In determining if a nondiscriminatory state regulation of interstate commerce is valid, the courts balance the local interests in maintaining the law against the burden on interstate commerce. Some members of the Court reject undue burdens balancing, limiting the Dormant Commerce Clause to a ban on discrimination.

  • Important state interests in trade, conservation, and environment weigh heavily in the balance but cannot be achieved by means which excessively impede the free flow of interstate commerce.
  • State highway laws enjoy a heavy presumption of validity but, even here, states cannot unreasonably burden our national Common Market system.

d. State as Market Participant

When the state acts, not as a regulator, but as a participant in the marketplace, the Dormant Commerce Clause doctrine doesn’t apply. Even state discrimination in favor of its own citizens is permissible. Subsidies may involve such nonregulatory market participation. The more state actions affect parties not in privity with the state, the more likely the state will be held to be a regulator.

  1. Protecting Personal Mobility

a. Commerce Clause

The Commerce Clause protects the free movement of persons from state to state.

b. Interstate Privileges and Immunities

Art. IV, § 2, prohibits unreasonable discrimination against out-of-state citizens in regard to fundamental interests basic to the livelihood of the Nation. There must be a substantial reason for the discrimination and the discrimination must bear a close relation to that reason. To justify discrimination in rights fundamental to national unity, it must be shown that out of state citizens are a peculiar source of the evil. Further, there must not be any less burdensome alternatives. The clause provides an alternative to the Dormant Commerce Clause for attacking state discrimination against out-of-state citizens and may be used when the State is acting as a market participant.

  1. When Congress Speaks

a. Preemption

  • If a state law conflicts with a valid federal law so that it is impossible to comply with both or if it impedes achievement of the federal legislative objective, the state law is invalid under the Art. VI Supremacy Clause.
  • Congress may expressly preempt state law.
  • If there is no conflict or express preemption, the courts must still determine if Congress intended to occupy the field and exclude the state regulation. Courts consider: (a) need for uniformity; (b) legislative history; (c) the pervasiveness of the federal regulation; (d) historic roles of national and local interest in regulating in the area (presumption of no preemption in areas of traditional state authority); (e) potential for future conflict; (f) availability of a federal agency to maintain continued control.

b. Legitimizing State Burdens on Commerce

In exercising its plenary powers, Congress may authorize the state to regulate even where the state law would otherwise violate the negative implications of the Dormant Commerce Clause. But Congress must expressly and unambiguously manifest such an intent.

5. The Compact Clause

Art. I, § 10, cl. 3, requires congressional consent to any agreement between states if it increases the political power of the states so as to potentially interfere with federal supremacy.

B. State Power to Tax Commerce

1. General Principles

  1. Interstate commerce can be forced to pay taxes which reasonably reflect the benefits derived from the taxing state.
  2. States may not discriminate against interstate commerce.
  3. Due process requires that the taxpayer have some minimal contacts with the taxing state.
  4. The Commerce Clause requires that a state tax be apportioned to reflect the extent of the taxable status the taxpayer has in the taxing status to avoid multiple burdens.

2. Modern Applications

Identify the local incidents being taxed and inquire into the actual economic effect of the tax. The tax is valid if:

  • the activity taxed is sufficiently connected to the taxing state;
  • the tax is fairly apportioned;
  • the tax does not discriminate against interstate commerce;
  • the tax fairly reflects the benefits received.


When executive and congressional powers conflict, formalist and functional approaches are used. In determining if separation of powers has been violated, consider whether one Branch is invading the constitutional prerogatives of another Branch or is usurping powers properly shared.

A. The Domestic Arena

  1. Executive Law–Making

a. Limited Domestic Law–Making Powers

Absent an emergency, the President has no inherent domestic law-making power. His powers as Chief Executive and his power to take care that the laws are faithfully executed may create some emergency powers subject to congressional review. Congressional acquiescence, custom and usage, may augment Executive powers.

b. Veto Power

A presidential refusal to sign an act into law can be overridden by a two-thirds vote of both houses. But the Line Item Veto Act violates the Presentment Clause of Art. I, § 7. Instead of the law-making procedure outlined in Art. I, § 7, the Act allows the President to cancel or repeal particular spending provisions thus changing the signed law. This is inconsistent with the constitutionally prescribed Veto Power.

2. Executive Impoundment

It has not yet been decided whether a President’s withholding or delay in expending appropriations is a constitutional exercise of the Executive power to faithfully execute the laws or an unconstitutional interference in Congress’s law-making power.

3. Delegation and Control of Legislative Power

  1. Congress can delegate power to the Executive if it formulates reasonable standards–an “intelligible principle”–to guide discretion. The courts defer to Congress in determining reasonableness.
  2. The Legislative Veto. Retention of power by Congress to review and veto executive exercise of delegated power is legislative action which violates the Presentment and Bicameralism provisions of Art. I, § 7.

4. The Appointment and Removal Power

  1. II, § 2, cl. 2, vests the power to appoint federal officials, subject to the Senate’s advice and consent, in the President. Congress may vest appointment of inferior officers in the President, courts of law, or heads of departments, but not in the Congress itself.
    • Congress may not vest the appointment power in persons other than those specified in Art. II, § 2, cl. 2.
    • Whether an official is a principal or an inferior officer depends on a functional analysis of her independence, power, jurisdiction, and tenure.
  2. The President has the power to remove quasi-judicial or quasilegislative officials subject to the standards established by Congress. The President has greater freedom to remove purely executive officials but it is not absolute. Consider whether Congress’ removal restrictions impede the President’s ability to perform his constitutional duty.
  3. Congress may not vest executive functions in officials subject to congressional removal by means other than impeachment.

5. Separation of Powers Generally

Consider generally whether the challenged actions excessively intrude on the constitutional functions of another Branch or consolidate powers that should properly be dispersed.

B. The Foreign Arena

1. Foreign Affairs

Foreign affairs powers are shared powers between the President and Congress. States and courts play a limited role.

2. Treaties and Executive Agreements

  1. Treaties are made by the President with the advice and consent of two-thirds of the Senators present. They prevail over state law but are subject to constitutional limitations. But a treaty is not binding domestic law unless Congress enacts implementing legislation or the treaty is self-executing. The President cannot unilaterally make treaties binding domestically.
  2. Executive Agreements, not requiring Senate concurrence, are legal even though they are not mentioned in the Constitution and prevail over contrary state law.
  3. Congressional legislation, which would not otherwise survive constitutional review, may be a legitimate means of implementing a treaty.

3. The War Power

While Art. I gives the Congress alone power to declare war, the President’s Art. II power as Commander-in-Chief affords him power in making war. But he cannot order the indefinite detention of American citizens arrested on American territory without due process of law. Even aliens detained at Guantanamo are entitled to habeas corpus to test their status as enemy combatants. It is unconstitutional for Congress to authorize use of procedures which fail to provide the protections of habeas corpus to detainees, without suspending the writ.

  1. Privileges and Immunities

1. Executive Privilege

The Court has recognized the existence of an executive privilege for internal confidential communications based on the separation of powers principle and Art. II. A claim of privilege is presumptively valid and the judiciary determines whether a sufficient need has been shown by the party seeking disclosure.

2. Impeachment

A President may be impeached by the House and tried by the Senate for “Treason, Bribery, or other high crimes and misdemeanors.”

3. Presidential Immunity

The President is absolutely immune from civil liability for actions within the “outside perimeters” of his official responsibility. But the President does not have a general constitutional immunity for unofficial acts allegedly committed prior to assuming office. Presidential aides have a qualified immunity.

4. Congressional Immunity

Members of Congress and their aides enjoy absolute immunity under Art. I, § 6, for “legislative acts.”





A. The Original Constitution

1. Natural Rights

The idea that there are extra-constitutional legally enforceable “natural rights” limiting governmental power has not been accepted by the Court.

2. Express Rights

The original Constitution contains few express rights limiting governmental power.

B. Bill of Rights

The first ten amendments were enacted only to limit the newly created federal government. They do not apply directly against the states. The Due Process Clause is used to apply the guarantees of the Bill of Rights to the states.

  1. The Civil War Amendments

1. Thirteenth Amendment

This amendment abolishes slavery and involuntary servitude. Unlike other amendments, it applies to private action.

2. Fourteenth Amendment

Persons born or naturalized in this country are citizens of the United States and of the state of their residence. No citizen of the United States can be denied the privileges and immunities of United States citizenship. No state shall deprive citizens of life, liberty, or property without due process of law or deny any person in the jurisdiction equal protection under the laws.

3. Fifteenth Amendment

Denial of the franchise because of race or previous condition of servitude by the state or federal government is prohibited.

D. Privileges or Immunities of National Citizenship

The Fourteenth Amendment Privileges or Immunities Clause does not make the Bill of Rights applicable to the states. The Clause has been narrowly interpreted to protect only those rights relating to a U.S. citizen’s relationship to the national government, e.g., to vote in federal elections. While it is seldom used today, it has recently been used to prevent discrimination against newly arrived residents based on their exercise of the right of interstate travel.

E. The Second Amendment

The Second Amendment confers an individual right to possess and carry weapons in cases of confrontation. The right is not unlimited but the Court has not determined the scope of permissible government regulation or the appropriate standards of judicial review or the issue of incorporation.


While there are a few guarantees of liberty and property in the original Constitution, a central source of personal rights has been the Due Process Clause of the Fifth and Fourteenth Amendments. Fourteenth Amendment due process includes: (1) incorporated fundamental rights; (2) substantive rights limiting what government can do; (3) procedural limits on how government acts.

A. Ex Post Facto Laws

Neither the federal (Art. I, § 9) nor the state (Art. I, § 10) government may enact retrospective criminal laws significantly disadvantaging an offender. Civil laws are not covered by the Clauses.

B. Bills of Attainder

Neither Congress (Art. I, § 9) nor a state legislature (Art. I, § 10) may punish an individual without the benefit of judicial trial.

C. Impairment of Obligation of Contract

Art. I, § 10 limits state legislative ability to impair substantive contract obligations and the Fifth Amendment Due Process Clause prevents congressional impairment of substantive contract rights. It is occasionally used to limit government power, but infrequently.

1. Private Contracts

A state law substantially impairing pre-existing contractual relationships violates this guarantee unless the state establishes that the law is a reasonable means for achieving a significant and legitimate public purpose.

2. Public Contracts

A state may contract away its fiscal powers and may impair its contracts only if it is reasonable and necessary to serve important state interests.

  1. The Takings Clause

1. Taking Property

“Private property” is generally defined by looking to rules and understandings stemming from an independent source such as state law.

2. Constitutional Text

The Fifth Amendment provides that private property is not to be taken by the federal government without just compensation. The Fourteenth Amendment Due Process Clause has been held to impose a similar obligation on the states.

  1. What Is a “Taking?”

a. Regulatory Takings

The concept of taking goes beyond the formal condemnation of property to invalidate any regulation which is functionally equivalent to condemnation.

b. Reasonable Regulation

In determining if a regulation is a taking, factors to be considered include: economic impact of the regulation, effect on investment expectations, and the character of the government action. But the effectiveness of the regulation in furthering government interests is not relevant.

c. Categorical (Per Se) Takings

If the government physically invades the property on a permanent basis or denies all economically beneficial or productive use of the land, there is a taking. A moratorium on property development, even for years, is not a categorical taking.

d. Conditional Takings

In determining whether government imposition of a condition as a price of land development is a taking, two questions are asked:

  • whether there is an “essential nexus” between the legitimate state interest and the condition, and
  • whether the government has made sufficient individualized findings establishing that the exaction has a rough proportionality to the impact of the proposed development.

4. Public Use

The taking must be for a public purpose, including economic development. Courts defer to the legislature.

E. Due Process: The Incorporation Process

1. Selective Incorporation

Only those provisions of the Bill of Rights which are “essential to the concept of ordered liberty” or “fundamental in the American scheme of justice” are made applicable to the states through the Due Process Clause. Rights thus far not incorporated as “fundamental rights” include the Second and Third Amendments, Seventh Amendment right to jury trial in some civil cases, grand jury indictment, excessive bail, 12–person juries and a unanimous verdict for conviction.

2. Full Incorporation

The incorporated fundamental right applies against the states in the same manner as the Bill of Rights provision applies against the federal government.

F. Traditional Substantive Due Process

1. The Rise and Fall of Economic Substantive Due Process

Under “Lochnerism,” the courts invalidated federal and state laws as arbitrary and unreasonable interferences with the right of contract protected by the due process guarantees of liberty and property. Today, this active judicial review of socio-economic legislation has been replaced by judicial deference.

2. Modern Substantive Due Process: Non-fundamental Rights

In reviewing federal (FifthAmendment) and state (FourteenthAmendment) laws, the courts usually defer to the legislative judgment. If there is any rational basis that the legislature might have had for concluding that a law would further permissible legislative objectives, it does not violate due process. This deferential standard is used in reviewing most social and economic legislation.

a. Burden of Proof

The law is presumed constitutional and the burden of proof (which is essentially insurmountable) is on the challenging party.

b. Legitimate Objective

Any permissible government objective will suffice.

c. Rational Means

In assessing the rationality of the law in achieving the government’s objective, the courts will not second-guess legislative fact finding or question the wisdom of the law.

d. Fundamental Rights Exception

Due Process challenges based on fundamental personal rights invoke a more searching judicial scrutiny.

G. Substantive Due Process Revisited: The Right of Privacy and Other Unenumerated Rights

1. Fundamental Rights

When laws burden the exercise of “fundamental rights” protected by the Due Process guarantee, the courts apply stricter scrutiny. The government bears the burden of showing that the law is narrowly tailored to further an overriding government interest. Often the review is “strict,” requiring a showing that the means are “necessary” to a “compelling government interest.”

2. Express, Implied, and Unenumerated Rights

A more stringent standard of review is used for all express rights, those rights implied from the express rights or the constitutional structure, and other unenumerated fundamental rights recognized by the courts. When the Court holds that a law burdens a significant or special liberty right, the Court uses strict scrutiny or employs a “particularly careful scrutiny.”

  1. Contraception and Abortion

a. The Privacy Right

There is no express right of privacy in the Constitution, but in early cases involving contraception and abortion, the Court held there is a constitutional right of privacy which limits the power of the government to regulate sexual activities involving marriage and family life.

b. The Roe v. Wade Revolution and Reaction

In Roe v. Wade (1973), the Court extended the fundamental right of privacy to protect a woman’s decision to terminate a pregnancy. The Court found the privacy right in the Fourteenth Amendment guarantee of personal liberty and applied a “trimester test” to determine whether strict scrutiny was met.

c. Casey: The Essentials of Roe

  • In Planned Parenthood of S.E. Pennsylvania v. Casey (1992), the Court verbally reaffirmed the “essential holding” of Roe including:
    • the right of a woman to choose to have an abortion before viability without undue interference from the state;
    • the state’s power to restrict abortion after viability as long as there is an exception for the mother’s life and health;
    • the state’s legitimate interests in protecting the health of the woman and the life of the fetus.
  • The plurality in Casey did not discuss a right of privacy or fundamental rights, nor did it adopt strict scrutiny. Rather the “undue burdens” test was used. A law is invalid “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

d. Abortion after Casey

A federal law banning partial birth abortion was upheld against a facial challenge despite the absence of any provision exempting mothers whose health was at risk. The Act did not impose an undue burden because there was medical uncertainty as to whether the prohibition on partial birth abortion created significant health risks. The prohibition is subject to as-applied challenges.

e. Rights of Minors

The minor woman’s right of privacy also protects her contraception and abortion decisions. However, the greater state interest in minors and their usual lesser capacity permit a greater amount of state regulation. Parents cannot be given an absolute veto over the minor’s decisions but requiring parental consent or notification, if a judicial by-pass is provided, has been upheld.

f. Abortion Funding

There is no right to abortion funding. Neither the right of privacy nor equal protection requires the state to make the abortion right effective even if maternal funding is provided.

4. Sodomy Laws

A state law criminalizing homosexual sodomy violates due process liberty. Liberty protects intimate decisional choices involving consensual adult sexual conduct in the privacy of the home. The state has no legitimate interest sufficient to justify the intrusion into the personal and private life of the individual.

5. Rights to Marriage and Family Life

The institutions of marriage and family, which are deeply rooted in our nation’s history and traditions, are fundamental rights subject to the stricter form of judicial review. The Court has protected the right to marry, parents’ right to the care, custody and control of their children and the right of close relatives to live together free from excessive government regulation. Particular associations and relationships may be held not to constitute a constitutionally-protected family or marriage.

  1. Right of Travel

a. Interstate Movement

While the source of the right of interstate travel is unclear, it is a fundamental personal right subject to more stringent judicial protection.

b. Foreign Travel

The right to travel abroad guaranteed by Fifth Amendment due process is subject to reasonable regulation by the national government.

7. The Right to Care and Protection

Government has no affirmative constitutional duty, absent special circumstances, to provide care and protection for individuals. A limited duty may arise if government assumes custody of an individual.

8. The Right to Refuse Treatment

A person has a liberty interest in avoiding unwanted medical treatment. The government’s interest may justify the regulatory burden on liberty, e.g., the state’s interest in preserving life justifies imposing a heightened evidentiary standard before life support is terminated.

9. The Right to Die

There is no fundamental right to commit suicide nor any fundamental right to assisted suicide. Such interests are neither traditionally protected nor implicit in the concept of ordered liberty as to be deemed fundamental. Criminal prohibition of such practices is rationally related to legitimate state interests such as preserving life, protecting the depressed and vulnerable groups, and avoiding euthanasia.

10. Rights in Restricted Environments

Stricter standards of due process review usually do not apply in special contexts such as the military, prisons, schools, and mental institutions. Balancing of the competing interests tends to reflect greater judicial deference.

H. Procedural Due Process

Whenever the government deprives a person of a significant life, liberty, or property interest, it must afford due process. Whether the interest is a right or a privilege, if it is a due process interest and is presently enjoyed, it is protected.

The question of what process is due is a matter of federal constitutional law for the courts. It is not determined by state law. In determining what procedures are required to assure due process, courts balance the competing interests, usually considering three factors:

(1) the severity of the harm to the litigant if the procedures are not provided; (2) the risk of error if the procedures are not afforded; and,

(3) the administrative difficulty and other costs of providing the requested procedures.

  1. What Is Property?

Property is limited to interests recognized by government, e.g., entitlements.

  1. What Is Liberty?

Liberty is not limited to freedom from confinement. It includes marriage, raising a family, etc. But reputation, without more, does not constitute a sufficient liberty interest.

3. What Is a “Deprivation”

Negligent injury by government officials to life, liberty or property interests does not constitute a deprivation.

  1. Due Process Contexts

a. Welfare Benefits

Welfare benefits, once received, constitute a property entitlement. Courts balance the state interest in conserving resources against the recipient’s interest in uninterrupted benefits.

b. Use and Possession of Property

Wages or a purchaser’s interest in goods received under a contingent sales contract constitute property. Normally, notice and hearing are required prior to depriving the property interest.

c. Public Employment Rights

The mere subjective expectancy of continued employment or employment terminable at will are not property interests. There must be a state-created entitlement. A state-created cause of action is a property entitlement. The state may so condition an employment interest that it does not constitute property. But the court determines what procedures are due once a property interest exists—“No bitter with the sweet.”

d. Institutional Due Process

While officials in public institutions do exercise broad discretion, liberty interests resulting from compulsory attendance at a school or involuntary confinement in a hospital require due process to be satisfied. Parole revocation or revocation of pre-parole conditional release involve liberty interests. The appropriate procedures are determined by balancing the liberty interest against institutional considerations.

e. Parental Rights

The important liberty interests of natural parents in the care, custody, and management of their children require significant procedural protection.

f. Student Rights

Due process does protect the liberty and property interests of a student. But the courts are reluctant to intrude on academic decisionmaking and the discretion afforded school authorities.

g. Access to Courts

Due process does not require that indigents be given free access to the courts in civil cases absent state monopoly of processes affecting fundamental due process interests. But once a state affords a right of access or significantly burdens fundamental rights, imposition of filing fees may violate due process (and equal protection). Procedures available in civil proceedings are determined by the balancing test, although there is a presumption against a right to appointed counsel in civil proceedings.

h. Fair Trial/Judicial Bias

While matters of judicial bias are normally dealt with through local rules and statutes, the Due Process Clause imposes some basic restrictions on when a judge must recuse himself from a case. If the judge has a direct, personal, substantial pecuniary interest in the outcome, recusal is constitutionally required. If an objective appraisal indicates that there is a serious risk of actual bias, the Due Process Clause requires that the judge recuse himself in the interest of a fair trial in a fair tribunal.

5. Conclusive Presumptions

When critical due process interests are lost through government action, due process generally requires that the individual be afforded an opportunity to prove that the facts presumed are not true in the particular case. But if the case involves a non-contractual claim to public benefits, it is possible that no liberty or property interest is involved.


A. General Standards

The Fourteenth Amendment Equal Protection Clause and the Fifth Amendment Due Process Clause (which is read to guarantee equal protection) prohibit the state and federal government respectively from using unreasonable classifications. Reasonableness is dependent on: (1) the basis of the classification; (2) the character of the interests burdened by the classification; and (3) the government objectives supporting the classification. The courts generally use three principal standards of review: (1) the traditional rational basis test; (2) an intermediate standard requiring that the classification be substantially related to an important government interest; and (3) strict scrutiny requiring that the classification be necessary to a compelling state interest.

B. Traditional Equal Protection

1. The Rational Basis Test

In most cases, a classification will be upheld if it is rationally related to any permissible government objective. The fact that a classification is under- or over-inclusive will not result in its unconstitutionality.

a. Burden of Proof

The law is presumed valid and the burden of proof of its invalidity is on the challenger. The burden is usually insurmountable.

b. Permissible Government Objective

If the classification is rationally related to a permissible government objective, even if it is not the actual objective, it will be upheld.

c. Rational Means

If any facts can be ascertained that will sustain the classification, the existence of such fact finding by the legislature will be assumed. Only arbitrary classification is proscribed.

2. Rationality With Bite

In some cases, the Court has engaged in a more demanding balancing of the competing interests in determining the reasonableness of the challenged classification. This may reflect judicial concern with possible prejudice or animus against the disfavored class.

  1. Heightened Review Equal Protection

1. Suspect Classifications

When a law purposely employs a suspect classification, the classification is subject to strict scrutiny. The ordinary presumption of validity no longer applies and the burden is on the government to demonstrate that the classification is necessary to a compelling government interest.

2. Criteria of Suspectness

Factors which have been considered in labeling a classification suspect include: the historical purpose of the Equal Protection Clause; the history of discrimination against the class; the stigmatizing effect of discrimination; classification based upon a status which the person cannot control; discrimination against a politically insular minority.

3. Purpose, Not Effect

Before strict scrutiny is used, the challenger must prove that the discrimination was purposeful, either overtly or covertly. While discriminatory impact or effect may be evidence of discriminatory purpose, it is usually not sufficient in itself to prove discriminatory purpose. Even if discriminatory purpose is shown, government can avoid strict scrutiny if it can prove that it would have taken the same action even apart from the discriminatory purpose.

4. Legislation and Administration

Legislation or administrative action which is purposely discriminatory is subject to strict scrutiny. A law or policy may be overtly or covertly discriminatory in purpose. Even if a law or policy is neutral, it may be administrated or enforced in an intentionally discriminatory fashion (unconstitutional “as applied”).

  1. The Rationale and Limits of Suspectness

a. Race and National Origin

Racial, ethnic and national origin classifications are suspect, subject to strict scrutiny review.

(1) Segregation in Education

  • De Jure Segregation. Intentional racial segregation in public schools is inherently unequal and violates equal protection.
  • De Facto Segregation. Government has no affirmative constitutional duty to remedy segregation it has not created.
  • Duty to Desegregate. A de jure segregated school system is under an affirmative constitutional duty to desegregate. Action having a discriminatory effect impeding desegregation is prohibited.
  • Desegregation Remedies. In remedying de jure segregation, equal protection does not require racial balancing, although racial composition may be used in measuring desegregation. District courts have broad equity powers, including the use of busing. Remedies must reflect the nature of the constitutional violation.
  • Interdistrict Segregation. Segregation between school districts in a state does not violate equal protection unless it is caused by the government.
  • A school district desegregates if it complies in good faith with the desegregation decree and eliminates vestiges of past discrimination to the extent practicable. There is no duty to remedy subsequent unintentional resegregation.

(2) Affirmative Action

  • Federal, state and local affirmative action programs are reviewed under the strict scrutiny test.
  • In applying strict scrutiny, a narrowly-drawn race-based program designed to remedy specific, identified racial discrimination is likely to be upheld.
  • An institution of higher education has a compelling interest in the diversity of its student body, which can include racial and ethnic diversity. A race conscious admissions program must be narrowly tailored; the process must be individualized, not mechanical. Quotas or racial balancing are unlikely to be upheld. Race may be a “plus” factor; it must not be determinative of the admissions decision. Narrow tailoring does not require exhaustion of every possible race-neutral alternative. Time limits to race conscious policies are relevant.
  • Race-based student placement programs by elementary and secondary schools were held to be unconstitutional because they were not narrowly-tailored. The Court did not decide whether the schools’ interest in the benefits of racial diversity would be a compelling interest.
  • Congressional districting, where race is the predominant factor, is subject to strict scrutiny. Race is the predominant factor when the state subordinates traditional race-neutral districting considerations to race.
  1. Alienage—The “Sometimes Suspect” Classification

(1) Strict Scrutiny

When a state classifies on the basis of alienage, strict scrutiny normally applies.

(2) Political Function Exception

Only rationality is required when the state sets voter qualifications or defines the qualifications for appointment to important government positions involving governance of the political community, e.g., state police, teachers, probation officers.

(3) Preemption

State classifications involving aliens are preempted if they interfere with national policies regarding immigration and naturalization.

(4) Federal Discrimination

Action by the national government does not violate the Fifth Amendment if it is a reasonable means of implementing its immigration and naturalization powers.

c. “Almost Suspect” Classifications—Gender and Illegitimacy

When reviewing gender and illegitimacy classifications, courts generally use an intermediate standard of review. The classification must be substantially related to an important government interest.

(1) Gender Classification

(a) Sex Discrimination

In gender discrimination cases, the Court has referred to intermediate review as requiring “exceedingly persuasive justification.” This may include consideration of alternatives available to government, making the review closer to strict scrutiny. Use of classifications that intentionally discriminate against women based on stereotypes seldom survive intermediate review. If the classification reflects real differences between the sexes, it is more likely to be upheld.

(b) Discriminatory Purpose

While a discriminatory impact on women is evidence of impermissible intent, it is only a discriminatory government purpose that will trigger use of the intermediate standard of review.

(c) Non-sex Classifications

Not all classifications that disadvantage only women will be treated as discriminatory sex classifications.

(d) Affirmative Action

Classifications providing benefits only to women which are actually designed to remedy past discrimination are likely to be upheld using intermediate review if they are narrowly tailored to achieve an actual remedial objective.

(e) Mothers and Fathers

A law which discriminates against fathers, in favor of mothers, where the parents are similarly situated, is subject to intermediate review and generally violates equal protection. But there may be real difference between mothers and fathers that justify the discrimination.

(2) Illegitimacy Classifications

An intermediate standard of review is also used for classifications burdening illegitimates—the classification must be substantially related to an important government interest. The more that it appears that a law is based on prejudice against illegitimates, the more likely it is that the law will be held unconstitutional.

d. Other Classifying Traits

Other classifying traits, e.g., those which operate to disadvantage the poor, the aged, the mentally retarded or gays and lesbians (sexual persuasion) without more, are reviewed under the traditional rational basis test. But if the law suggests prejudice or animus it may be reviewed using “rationality with bite.”

6. Fundamental Rights

When a classification significantly burdens the exercise of fundamental personal rights, the government usually must prove that the classification is necessary to a compelling governmental interest.

  1. In cases where the law does not deter, penalize, or otherwise significantly burden the constitutional right, the Court applies the traditional rational basis test.
  2. Increasingly, the Court has moved to a variable standard of review. The more significant the burden on fundamental rights, the greater the degree of scrutiny used.
  3. Examples of fundamental rights include:
    • First Amendment Rights—When government classifications significantly burden the exercise of fundamental First Amendment rights such as freedom of speech or religion, the classification is closely scrutinized.
    • The Right of Interstate Travel—When the government imposes a classification which deters, penalizes or otherwise significantly burdens the fundamental right to travel, the strict scrutiny standard of judicial review applies. In some cases, the Court has held that the law could not satisfy even rationality review. Recently, the Court has used the Privileges and Immunities Clause of the Fourteenth Amendment to prevent discrimination against newly arrived citizens of the state.
    • The Right of Privacy and Marriage—Only if a fundamental right is significantly burdened will heightened scrutiny apply.

7. Fundamental Interests

The Court also has used a stricter standard of review to prevent discrimination in access to certain fundamental interests that are not technically constitutional rights but are protected by the Equal Protection Clause when discrimination is involved. This use of stricter review has been applied to the following interests:

a. Voting

  • When the government discrimination significantly burdens the exercise of the franchise, in general or special purpose elections, strict scrutiny is applied.
    • Special Purpose Districts. A district may be so special purpose and its effects on citizens so disproportionate that strict scrutiny will not be applied.
    • Durational Residency Requirements. While reasonable residency requirements are constitutional, durational residency requirements burden the vote and the right of interstate travel.
  • Diluting the Franchise. Dilution of the effectiveness of a vote of a particular class will often be reviewed under a more stringent standard of review than rationality.
    • Access to the Ballot. The requirements must be fair and not virtually exclusionary of independents and minority parties.
    • The one person-one vote principle is applied to congressional districting as a command of Art. I, § 2, and to both houses of a bicameral state legislature as a mandate of equal protection.
    • Multi-member Districts. Multi-member districting violates equal protection and the Fifteenth Amendment if it is a purposeful device to exclude racial minorities from effective political participation.
    • Political Gerrymanders. While equal protection challenges to political gerrymanders are presently justicable, the Court is sharply divided as to whether judicially manageable standards are possible. Political gerrymanders that are proven to be intentionally discriminatory and which have actual discriminatory effects on an identifiable political group violate equal protection.
    • Vote Processes. In Bush v. Gore (2000), the Court held that equal protection may be violated by arbitrary and disparate treatment in the processes by which votes are counted but this may be limited to the unique circumstances involved.

b. Access to Justice

Differences in wealth should not determine the ability of a person to secure criminal justice. Similarly, some civil cases involve matters of such fundamental concern, e.g., termination of parental rights, that equal protection requires equal access.

c. Education

While education is an important social and individual interest, the rational basis test is generally used for reviewing classifications burdening the interest in education. But when education is totally denied to a discrete underclass of children, the Court has required government to prove substantial justification.

8. Other Interests

Classifications burdening other social and economic interests, such as welfare, housing and medical care, are reviewed under the traditional rational basis test.