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Derecho Anglo A (Souto)

Marriage
It is a civil contract entered into by both parties. It cannot be dissolved by the
parties but only by the sovereign power of the state.

Valid and invalid marriage

The validity of a marriage is determined by the laws of the place where the marriage
is contracted and validated.

Requirements

1) Legal, mental and physical capacity of the parties

2) Consent of the parties

Legal impediments may result from:

1) One or both of the parties being under age

2) A marriage between relatives within the prohibited degrees of relationship
3) A previous marriage undissolved by death or divorce

Voidable marriage: recognized until set aside in court

Void marriage: never existed legally

Mental incapacity to marry

The person is of unsound mind or mentally incompetent (includes intoxication).

A marriage contracted during the mental incapacity of one of the parties is

voidable, but it may later be rati ed by this person should they subsequently
become competent

Physical incapacity to marry = impotence

Makes the marriage voidable

Husband: head and support of the family

After separation, the husband should support his ex-wife if he is guilty or if both of
them are. If, however, the wife is guilty for the separation, the husband is not bound
to support her.

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Tenants by entirety

Ordinarily, when husband and wife, both acquire a piece of real estate, they are said
to own it as tenants by the entirety. They both own the whole property and neither
can convey away his half.

Marriage settlements

May be made either before or after marriage and must relate solely to property. They
must be fair, reasonable, and both parties must have knowledge of all the facts; any
concealment might invalidate the agreement.

Community-property system

All property acquired during the marriage, as a result of the work and e orts of
either the husband or wife, or both of them, belongs to both of them. The only
property that a husband or wife can hold separately is that owned by the individual
before marriage or acquired by gift or inheritance during the marriage.

Marital Property
It is any income or property obtained during a marriage, even if the property is only
titled in one spouse's name. Property includes real estate, automobiles, furniture,
wages and pension plans.
Community property states = marital property is divided in half and given to the
spouses equally. The only exception to the 50/50 division is when one spouse is
considered at fault, by committing adultery, for example. The current community
property states are: Arizona, Idaho, California, Nevada, Louisiana, Texas, New
Mexico, Wisconsin and Washington.
Equitable distribution states = The other way for courts to divide property is
equitable distribution. This means that the property is not always distributed equally,
but in a way that gives the spouse with a higher income his fair share. Some
equitable distribution states also have an exception for the party at fault, meaning
that this spouse may receive less than his share.
Factors for division of property = If a divorcing couple resides in an equitable
distribution state, a court looks at several factors when diving the property. Those
factors include: (1) age of the spouses, (2) health of the spouses, (3) length of the
marriage, (4) ability of each spouse to earn a living after the divorce, and (5) fault.

The case of an unmarried couple not in a civil partnership is very di erent. Their
property rights remain exactly the same after the split as before. Any property
continues to belong to its owner and that is usually the person who paid for it.
Naturally, there is some room for dispute over this but that is the over-riding
principle and the courts have no jurisdiction to ignore it. So if, for example, a man
owns a house and moves his girlfriend in but the relationship subsequently breaks
down there is no question but that the house remains the property of its owner and

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the girlfriend has no claim on it whatever - whether there are children or not.
However, it is fair to say that a complication that may arise in the case where
cohabitees have dependent children is that the courts have jurisdiction to refuse to
order a sale of the property until the children cease to be dependent or otherwise to
need the property as their home while they are dependent.

Divorce
Terminating the marriage relationship

Marriage can be terminated through:

1) Death

2) Divorce

3) Voluntary separation = a husband and a wife agree to live apart with an

arrangement for the support of the wife and the custody and support of any
children of the marriage.

4) Judicial or legal separation = suspends the marriage relation and provides for
the separate maintenance of the wife and husband.

5) Annulment = is a court decree holding that a marriage is a nullity from the

beginning.

A decree of divorce contains 2 essential elements:

• The decree dissolving the civil contract of marriage

• A rilling on the ownership and property rights and alimony obligations of the
couple.

No-fault divorce

The irretrievable breakdown of a marriage or similar grounds are su cient reason

for a divorce. So long as both parties agree that the marriage is beyond repair, most
states grant divorces without further inquiry.

Traditional grounds for divorce

- Adultery
- Conviction of a crime or felony
- Extreme cruelty
- Desertion

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- Fraud
- Habitual drunkenness or use of drugs
- Duress = legal word for force. Four states provide that divorces may be granted
when the marriage was contracted by force or by threat of bodily harm.

- Insanity
- Impotence
- Personal indignities = indignities are a form of mental cruelty and must consist of
rudeness, vulgarity, abusive language, malicious ridicule or other forms of hateful
actions.

- Non-support of wife
- Pregnancy at time of marriage
- Disappearance

Defences to divorce actions

A divorce is not always granted when an appropriate cause for a divorce appears to
be probable. Often there are extenuating or aggravating circumstances that cause a
court to deny a divorce. These circumstances are known as “defenses”.

1. Condonation = forgiving a matrimonial o ence

2. Provocation and justi cation

Collusion: sometimes spouses agree that one of them will commit a matrimonial
o ense for the purpose of permitting the other to obtain a divorce. Fraud on court.

Separation agreements: they may settle the household goods and the property to
be retained by each.

Custody and support of children

Courts give primary consideration of the welfare and best interests of the children.
At least 5 factors are considered:

- Age and sex of the child

- Wishes of the child
- Interaction and interrelationship of the child with parents
- Adjustment to home, school and community

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- Mental and physical health of all parties involved

Alimony

It comes from the common law obligation of the husband to support the wife.

At the beginning, the court will grant temporary support to a spouse during the
pendency of the case.

Permanent alimony is the allowance that the court compels the other spouse to
pay for support and maintenance after judicial separation or divorce.

Palimony

Payments a court awards payments to an unmarried former partner.

Wills
It is a written instrument by means of which a person makes provision for the
disposal of their property to take e ect upon their death. A will should be drawn by
a lawyer. People who die without a will are said to die intestate.

Types of wills
1) Instrument in writing
2) Executed as prescribed by statute of the particular state (lawyer, witnesses,
publication)
3) Intended as a will by the testator
4) It disposes of the person’s property to take e ect upon their death
5) It is revocable during the lifetime of the testator

Legacy or bequest: a gift of personal property in a will. The person who receives it
is a legatee.

Devise: a gift of real estate in a will. The person who receives it is a devisee.

Disinheritance of a husband, a wife or relatives

The requirement of the law is that the testator know or is aware of who are the
natural objects of their bounty. In drawing a will, some lawyers feel that it is wise to
mention the relatives who are disinherited, and, sometimes, to give a tactful reason
for disinheritance.

Factors invalidating a will

- The person making the will was incompetent to do so (either for being under the
lawful age or for su ering from mental disability)

- Fraud or undue in uence was exercised upon the testator

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a) Fraud must be such as to induce the testator to make a disposition of
his property that they would not otherwise have made, and they must
actually be deceived.

b) Undue in uence must so overpower and subjugate the mind of the

testator that it destroys their free will and makes them express the will
of another person.

- The formal statutory requirements for execution were not ful lled

Probate is the proof and establishment of the validity of the will.

The executor or the bene ciaries must institute in a proper court a probate
proceeding. The heirs are required to consent or to oppose the probate.

Interpreting and construing wills

Often, the meaning of a will, the intention of the testator is ambiguous. Whenever it
is desired, an interested party may ask the probate court to construe and interpret a
will.

Revoking a will

A will may be revoked by an act of the testator or by operation of law.

A testator may revoke his will by:

• A subsequent writing = later will or codicil

• Any instrument other than a will containing an express declaration of absolute
revocation

• Mutilation, cancellation or destruction of the will

Trusts: legal title to property is given to a person (the trustee) who is directed to
administer the trust for the bene t of another party (bene ciary). They may be living
trusts or testamentary trusts.

A bene ciary may have:

A) Vested interest in a trust —> the interest is xed, certain, absolute and not
subject to defeat by a future uncertain event

B) Contingent interest —> the interest depends on the happening of an event that
may or may not take place

An income bene ciary receives income from the trust. If circumstances warrant,
they may be called the life bene ciary.

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The remainder-man receives the property after the termination of the trust.

Duration of a trust: common-law against perpetuities is limited to “lives in being at

the time of the creation of the trust” plus 21 years.

Living trusts doesn’t need to go through probate. They are, however, subject to
state taxes. They are also con dential.

Estates of deceased persons

Estates of deceased persons

A decedent’s estate must be managed by someone. If the decedent leaves a will,

they name an executor. If not, the person who will carry out all the responsibilities
of the administration of an estate will be the administrator.

The entire property left by the decedent is the gross estate. The balance of the
estate remaining after making provision for taxes, administration expenses and
legacies is called residuary estate.

Rights and duties of the executor or administrator

They are known in law as a duciary or “the legal representative of an estate”.

They have the powers to:

- Take the assets of the estate into their legal possession

- Sell and liquidate person property to convert the assets into cash
- Pay debts, funeral and administration expenses
- Distribute the estate to the bene ciaries

Dower is the interest that a wife has in her husband’s real estate, but this only
becomes e ective on the death of the husband. Frequently, the dower is a life
interest in one-third of the real estate owned by the husband at the time of his
death.

Curtesy is the “male” equivalent to dower, provided a child has been born to the
marriage. Recognized in only 7 states.

Doctrine of escheat: if after a lapse of certain time no heirs claim the estate of a
deceased person, it passes to and becomes the property of the state.

Agency
Is a legal relationship according to which a person acts for another.

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Agent is a person authorized to act for another.
The principal is the person for whom an agent acts and from whom the agent
derives authority.

Independent contractor is a person hired to undertake a result which is de ned by

a contract (ǂ an employee and usually not an agent)

• Agency may include employment = employees are always agents.

• Agency includes and may be created by a power of attorney = an attorney in
fact may represent another person as an agent for general or special purposes. It
is named as representative or agent in a power of attorney, a written document
setting out the appointment of the attorney.

• Agency generally does not include independent contractors = this is because

he is hired to achieve a purpose.

• Personal service obligations cannot be performed by an agent = these

obligations which cannot be delegated requiere the skill of a designated person
who cannot send a representative to act in his place.

• There are advantages to using independent contractors instead of

employees = no tort liability under respondent superior, less administrative
burdens, as much as 40% less in bene t expenses, avoidance of worker
discipline and performance evaluations, reduced exposure to potential
discrimination, etc. it also carries some disadvantages: less control over
worker’s performance and over their use of hirer’s proprietary information,
potential liability beyond worker’s compensation levels, etc.

Creation of an agency

1. By express contract or consensual agreement

The agency relationship is always consensual. It is usually created by
contract, oral or written. When an agency is not contractual, either party
can terminate it at any time without liability to the other for failure to
continue performance of the agency.
2. By the conduct of the parties.
Implied contracts may be judicially determined because the words or
actions of the parties would lead others to believe that an agency existed.
3. By rati cation of an unauthorized act
The principal may authorize it by accepting its results after the fact. There
is no rati cation unless the party that supposedly rati ed: (1) was in
existence when the “agent” acted, (2) had full knowledge of all material
facts before it rati ed, and (3) rati ed the entire act of a would-be-agent,
not simply the favorable parties.
4. By estoppel
Estoppel is conduct by one person that causes another person, reasonably
relying on this conduct, to act to his detriment or to change his position. An

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agent cannot give himself apparent authority; the principal must do so by
leading another one to believe that the agent is authorized.
5. By necessity
This happens with parents and children, or with representatives.

Duties of the agent to the principal

The contract de nes the duties of each party to the other. If not speci ed, the duties
are the following.

The law considers that an agent acts in a duciary capacity to his principal. The
obligations of a duciary are very strict.

• Duty to obey instructions. The agent is personally liable to the principal if he (1)
causes the principal to become responsible for unauthorised contracts, (2)
improperly delegates his duties to another, (3) commits torts for which his
principal may be responsible.

• Duty to act with such propriety as not to bring disrepute on his principal.

• Duty to stay within the scopes of his employment.

• Duty to act with skill, according to how he is expected to perform in that

employment. Any case of breach of contract requires proof (1) of the proper
standard of care or skill and (2) of failure of the agent’s performance to rise to that
level.

• Duty to avoid con ict of interest (duty of loyalty). An agent who is acting for a
principal cannot act for himself with respect to the same matter.

• Duty to protect con dential information. The principal must be free to disclose
all necessary information to his agent. The agent must protect this information.

• Duty to notify. The agent is the eyes and ears of the principal. The agent must
notify the principal of all information that is or maybe useful to the principal in
evaluating the matter at hand.

• Duty to account. The contract of an agency will specify times and manner of
accounting. The agent must maintain an “open book” for the principal so that the
principal may assess the progress of the work.

Duties of the principal to the agent:

The principal must:

- Pay all expenses the agent reasonably incurred in furtherance of the principal’s
business.

- Inform the agent of dangerous risks the principal has reason to know exist.

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Liability of the principal for contracts made by the agent

The agent is an alter ego of the principal. Thus, when an agent is acting within the
authority granted by the principal, he can bind the principal to the deal.

Actual authority —> either expressed or implied. Implied authority to make

contracts for the principal is a common sense ful llment of the agent’s job, a going
forward with the purposes of the principal’s business.

Apparent authority —> is a communication or signal directly from the principal to a

third party, thus granting authority to the agent.

Delegation of authority by agent —> ordinarily, an agent is not clothed with

authority to delegate his responsibility to someone else. However, it has apparent
authority to appoint subagents if it is in accordance with the established custom or
when the business indicates so.

Liability of the principal for torts of the agent

Direct liability: a principal is so under these circumstances:

• The principal gave the agent improper orders or instructions that caused the tort
to occur.

• The agent was improperly or negligently chosen or employed.

• The principal failed properly to supervise or oversee the work when he had a duty
to do so.

Indirect liability: founded on the common law doctrine of respondeat superior.

The agent must be acting in the scope of his employment. Tests:

• The conduct must be of the kind the agent was employed to perform
• The conduct must occur at the authorized place and time of employment
• The conduct must be motivated, at least in part, by service to the principal
• The use or means employed by the agent could have been anticipated by the
principal.

The principal is directly responsible of an independent contractor if the contractor

is negligently chosen.

Personal liability of the agent for the principal’s contracts

- Disclosed principal: the third party knows the agent is acting for a principal and
who the principal is. The agent has no personal responsibility for a contract made

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on behalf of his principal. The agent may have personal liability if he had no
authority to act.

- Partially disclosed principal: the third party knows the agent is acting for a
principal but not who the principal is. The agent is liable on the contract. If the
principal’s identity can be determined and the agent cannot satisfy the contract,
the principal may be liable on the contract also.

- Undisclosed principal: the third party does not know the agent is acting on
behalf of a principal. The agent is liable on the contract since the third party was
led to believe that the agent was the real party on the contract. An agent, and the
principal if he learns of the agency, may recover directly from the partially
disclosed and the undisclosed principal.

Tort liability of agents

An agent who commits a tort, whether acting within the scope of his employment or
not, is personally liable for the tort. In cases of such joint and several liability, the
injured party may sue either the principal, the agent or both.

Liability for crimes

If a principal directs, approves, or participates in a crime of his agent, the principal

is criminally liable, as is the agent.

Termination of agency

—> By acts of the parties = The parties may terminate the agency by any act that
would terminate a simple contract. It can also be terminated by mutual rescission,
by revocation of, authority by the principal, or by renunciation by the agent. To
assure that there is no lingering apparent authority, the principal generally must give
actual notice of termination to third persons who previously dealt with the agent.

—> By operation of law =

1. The death or apparent incapacity of either party.

2. The bankruptcy of either party.

3. The frustration of the purpose of the agency. Destruction of the

subject matter.

4. Subsequent illegibility of the business or the business venture.

5. Impossibility of performance by either party.

6. Material breach of the agency contract by either party.

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Torts
It is a private wrong against a person or his property. Aside from certain limited
circumstances, all torts arise from either an intentional, wrongful action or from a
negligent action.
—> Intentional torts = To constitute an intentional tort, one’s act must be expressly
or implicitly intended. The harm that is produced doesn’t need to be intended, but
must have been reasonably foreseeable.
—> Negligence = If someone believes they have been victims of negligence, they
must prove:
1. There was a duty imposed on the defendant in favor of the plainti .
2. The defendant breached/violated that duty.
3. The breach was the proximate (natural and foreseeable) cause of the
harm.
4. The plainti su ered damages.
The duty, the standard of care, is that of a reasonable, prudent person acting with
ordinary care and skill (the “reasonable man” standard).

Assault: arousing in another individual the apprehension of an immediate harmful or

o ensive contact with his body. Words alone are not enough; they must be
accompanied by some act.

Battery: unjusti ed contact with someone else’s body or anything connected to it

(purse, chair, cane, etc). The contact may be direct (a slap) or due to a force put into
motion by the defendant (a shooting bullet that strikes the plainti ). It includes
actions exceeding one’s authority for physical contact.

False arrest: detention of the plainti , without his permission, under the falsely
asserted authority of the defendant.

False imprisonment: wrongful use of force, physical barriers or threats of force to

restrain the plainti ’s freedom of movement. It makes no di erence whether or not
the illegal act is inspired by malice or by personal hostility.

Illegal con nement: a broad term that includes any con nement by physical
barriers or by force or by threats of physical force. It may be committed by any
person whether they claim to have legal authority or not. “False imprisonment” is
only one phase of the general subject of illegal con nement.

Malicious prosecution: the groundless institution of criminal proceedings. Liability

on this case depends on proof of malice and an absence of probable cause for
conviction as well as a termination of the proceeding in favor of the person who is
criminally prosecuted.

Intentional in iction of mental (emotional) distress: disturbance of the plainti ’s

peace of mind by the defendant’s outrageous conduct.

Invasion of privacy: interference with person’s right to be left alone. (1) public
disclosure of private facts, (2) publication of information placing a person in a false

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light, (3) intrusion upon a person’s private life, or (4) unauthorized appropriation of
name or likeness (a picture) for commercial purposes.

ABUSE OF PROCESS, DEFAMATION, FRAUD, INFRINGEMENT OF INTELLECTUAL

PROPERTY RIGHTS, NEGLIGENT MISREPRESENTATION.

Self-defense: if you in ict injury on another person in self-defense, you wouldn’t be

liable if:

• You believed the other person intended to injure you

• If the bodily harm was not intended or not likely to cause death or serious bodily
injury

• If you believed that the injury about to be done to you could be prevented only by
in iction of injury on the other person

The law does not permit in iction of injury as a punishment or in retaliation for a
past aggression or as a warning.

The person attacked may only use reasonable means to stop the attack.

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