A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.. In criminal law,
Trang 1SUICIDE and a California law that permits the possession of marijuana for medicinal use In addition, Ashcroft filed a brief with the Supreme Court in support of ending the University of Michigan’s affirmative action admission pro-gram While in office, Ashcroft advocated protection for the rights of gun owners while pressing for more severe punishments of those who commited capital crimes using guns or other WEAPONS Despite state moratoriums on capital punishment, exonerations of death row defendants in more than 100 cases, and Supreme Court decisions that banned the execution of mentally retarded inmates and overturned cases where judges rather than juries had imposed the death penalty, Ashcroft overruled U.S attorneys who had decided not to seek the death penalty, and he approved death penalty prosecutions in nearly half of all federal cases where capital punishment might have been applicable
Ashcroft resigned his position as attorney general in November of 2004 He was succeeded
byALBERTO GONZALES On May 18, 2009, a lawsuit
by Pakistani Muslim Javaid Iqbal against Ashcroft and FBI Director ROBERT S MUELLER
III charging abuse after the September 11th terrorist attacks was dismissed by the U.S
Supreme Court due to a lack of evidence Four months later, however, the NinthCIRCUIT COURT
of Appeals ruled against Ashcroft in a similar case, giving Abdullah al-Kidd, a U.S citizen, the right to sue Ashcroft for unlawful detainment
As of late 2009, Ashcroft continues his work with the Kansas City (Missouri) law firm he founded, The Ashcroft Group
FURTHER READINGS Annual Accountability Report 2002 Washington, DC:
Department of Justice.
The Ashcroft Group Available online at http://www.
ashcroftgroupllc.com (accessed August 24, 2009).
Ashcroft, John 1998 Lessons from a Father to His Son.
Nashville: Thomas Nelson Publishers.
Branch-Brioso, Karen March 5, 2003 “Ashcroft Reports Progress against Terrorism with Ridge and Mueller, He Tells Congress of Arrests, Better Information Sharing ”
St Louis Post-Dispatch.
Cloud, John 2001 “General on the March: John Ashcroft Wants to Mobilize the Justice Department to Fight Terror Is He Going Too Far? ” Time (November 19).
Fechter, Michael 2002 “Ashcroft Defends New Wiretap Powers ” The Tampa Tribune (November 21).
ASHWANDER RULES
A principle of constitutional law establishing judicial policy that courts should decide
constitutional questions only when necessary and should decide the case on another basis if possible
In Ashwander v Tennessee Valley Authority,
297 U.S 288, 56 S Ct 466, 80 L Ed 2d 688 (1936), JusticeLOUIS BRANDEISarticulated a series
of seven principles that apply to the Supreme Court’s policy of deciding constitutional ques-tions These principles include the policy that the court: (1) should not decide a constitutional question in a FRIENDLY SUIT; (2) should not anticipate a question of CONSTITUTIONAL LAW; (3) should not create a rule of constitutional law that is broader than that called for by the facts of the case; (4) should not decide a cons-titutional issue if the case can be decided on another ground; (5) should not rule on the constitutionality of a statute unless thePLAINTIFF
is harmed by the statute; (6) should not pass on the constitutionality if the plaintiff has accepted the benefits of the statute; and (7) should not rule on the constitutionality of an act of Congress without first analyzing whether the act can be fairly construed in a way that would avoid the constitutional question
FURTHER READINGS Farber, Daniel A and Suzanna Sherry 2009 Judgment Calls: Principle and Politics in Constitutional Law New York: Oxford University Press.
Marks, Thomas C., Jr 2008 “The Decline of American Culture: The Role of the Federal Judiciary ” Stetson Law Review 37 (spring).
CROSS REFERENCES Constitutional Law; Jurisprudence
ASPORTATION The removal of items from one place to another, such as carrying things away illegally
Asportation is one of the elements required to establish the crime ofLARCENY In order to prove that asportation has occurred, it is not necessary
to show that the goods were moved a substantial distance, but only that they were moved Asportation was one of the elements neces-sary to establish common-law KIDNAPPING, and
in many states it remains as an element of statutory kidnapping
ASSASSINATION Assassination is murder committed by a perpetra-tor without the personal provocation of the victim, who is usually a government official
388 ASHWANDER RULES
Trang 2First used in medieval times to describe the
murders of prominent Christians by the
Hashshashin, a secret Islamic sect, the word
assassination is used in the twenty-first century
to describe murders committed for political
reasons, especially against government officials
Assassination may be used as a political weapon
by a state as well as by an individual; it may be
directed at the establishment or used by it
The term assassination is generally applied
only to political murders—in the United States,
most commonly to attempts on the life of the
president However, the classification of any one
incident as an assassination may be in part a
matter of perception The assassination of the
outlaw Jesse James, in 1882, provides an
ex-ample of the difficulties Thomas T Crittenden,
governor of Missouri, assumed that being seen
as responsible for the death of the notorious
outlaw would be good for his political career For
this reason, Crittenden granted each of the killers
a pardon in addition to a $10,000 reward But the
U.S public spoke vehemently against James’s
killers, dubbing them assassins and his death an
assassination Crittenden was vilified by
Amer-icans, and his political career was destroyed
It is not always easy to guess the motivations
of those who attempt assassinations or to understand the historical and legal implications
of their actions The anti-constitutional nature
of assassination has also made it a focal point for conspiracies and conspiracy theories The first attempt at the assassination of a U.S
president was Richard Lawrence’s attack on
ANDREW JACKSON in 1835 Although a jury acquitted Lawrence on the ground of insanity, Jackson was convinced that the attack was part
of a WHIG PARTYconspiracy
The 1865 assassination of PresidentABRAHAM LINCOLN by John Wilkes Booth prompted its own set of theories In a controversial decision,
a military tribunal convicted nine people of conspiring in Lincoln’s assassination In the case of one of those hanged for the crime, Mary E Surratt, all that could be proved was that she owned the rooming house in which the conspirators plotted Nonetheless, high emotions at the end of the Civil War resulted
in her execution After sentiments cooled and talk of conspiracies calmed, the two surviving conspirators imprisoned for Lincoln’s death gained pardons from PresidentANDREW JOHNSON
President William McKinley was shot by Leon F Czolgosz, on September 6, 1901, at the Pan-American Exposition in Buffalo, New York McKinley died on September 14 LIBRARY OF CONGRESS ASSASSINATION 389
Trang 3Even greater controversy was caused when the public was deprived of the opportunity to see Lee Harvey Oswald tried for the assassina-tion, in 1963, of President JOHN F KENNEDY Oswald’s death at the hands of JACK RUBY
sparked theories of conspiracy that ranged from Communist plots to Mafia hits to cover-ups by U.S officials President LYNDON B JOHNSON
appointed a group of national figures, led by Supreme Court Chief Justice EARL WARREN, to investigate the assassination and issue a report
TheWARREN COMMISSIONconcluded that Oswald had acted alone
Despite this conclusion, conspiracy theories remained widespread in books and in films such
as Oliver Stone’s JFK: The Untold Story (released
in 1991) In an attempt to calm public suspicions surrounding the Kennedy assassina-tion, the President John F Kennedy Assassina-tion Records CollecAssassina-tion Act of 1992 (44 U.S.C.A
§ 2107) was passed by Congress The act released much of the Kennedy assassination material in government files As of 2009, its effectiveness at stilling concern over a possible conspiracy remained to be seen
It has become clear that the public demands
a thorough investigation of any attempt on a president’s life Because it is a crime to advocate the assassination of any U.S president, president-elect, VICE PRESIDENT, vice president-elect, or anyone legally acting as president (18 U.S.C
1751), evenTHREATSare carefully investigated In U.S history, four presidents have lost their lives
to assassins: Abraham Lincoln, JAMES GARFIELD,
WILLIAM MCKINLEY, and John F Kennedy
Political Assassination by U.S Government Employees
In 1974 the Congress established a committee
to investigate possible U.S involvement in plots
to assassinate foreign leaders deemed hostile to U.S interests Specifically, the committee inves-tigated the alleged involvement of the CENTRAL INTELLIGENCE AGENCY(CIA) in plots to kill Patrice Lumumba of the Congo, Fidel Castro of Cuba, Rafael Trujillo of the Dominican Republic, Rene Schneider of Chile, and Ngo Dinh Diem of South Vietnam The absence of a written record and the failing memories of principalWITNESSES
prevented the committee from conclusively demonstrating that presidents Eisenhower, Kennedy, or Nixon personally authorized the assassination of any foreign leader However, the evidence did show that between 1960 and
1970, the CIA was involved in several assassina-tion plots
The committee reported its findings in 1975
to a dismayed Congress Public outcry was loud and immediate At the urging of both the House
of Representatives and the Senate, President
GERALD R FORD signed an EXECUTIVE ORDER
banning all federal employees from committing assassination as a tool of U.S foreign policy or for any other reason (Exec Order No 11905) The order was extended by President RONALD REAGAN(who survived an assassination attempt)
15 years later to also preclude hired assassins Title 18 U.S.C §§ 2381 and 2385 (1976) prohibits the assassination of any officer of state or federal government
Following the September 11, 2001, terrorist attacks in New York City and Washington, D.C., Congress and the White House revisited the propriety of political assassinations committed
by members of the U.S government In December 2002, according to a Globe and Mail news story, President GEORGE W BUSH gave the CIA written authority to kill about two dozen terrorist leaders if capturing them proved to be impractical and civilian casualties could not be minimized The CIA relied on that authority in using a pilotless Predator aircraft to fire a Hellfire antitank missile at a car in Yemen carrying an al-Qaeda operative The al-Qaeda operative and five other people died in the attack
In July 2009 both the New York Times and Wall Street Journal published articles expound-ing on the CIA’s sequential plans to target and kill identified terrorists The plans were formally abandoned in mid-2009 by CIA director Leon Panetta after he advised congressional intelli-gence committees that he himself had just learned of the scope of the plans; they initially had been kept secret by the CIA’s counterter-rorism center under the order of former vice president Dick Cheney According to the Times article, law professor Kenneth Anderson of American University noted that as far back as
1989 the United States had argued that killing terrorists did not violate federal law as it would constitute a legal act of SELF-DEFENSE under
INTERNATIONAL LAW Such killings would be premised on the condition that authorities in the country where the terrorist was located were either unable or unwilling to prevent the terrorist from proceeding But international
390 ASSASSINATION
Trang 4law experts rebutted Anderson’s justification
with their own concerns They cited the
potential for violating the SOVEREIGNTY of
the country where the terrorist was killed, the
differing legal status between the CIA and the
uniformed military, and whether such a killing
would fall under the purview of the law of war
FURTHER READINGS
Allen Chair Symposium 2002 2003 “Political Assassination
as an Instrument of National Policy: An Inquiry into
Operations, Expediency, Morality, and Law ” Univ of
Richmond Law Review (March).
“C.I.A Had Secret Al Qaeda Plan.” 2009 Wall Street Journal,
July 13.
Donoghue, Mary Agnes 1975 Assassination: Murder in
Politics Chatsworth, Calif.: Major Books.
Edwards, William C., and Edward Steers 2009 The Lincoln
Assassination: The Evidence Champaign, Ill.: Univ of
Illinois Press.
Harder, Tyler J 2002 “Time to Repeal the Assassination
Ban of Executive Order 12,333: A Small Step in
Clarifying Current Law ” Military Law Review 172
(June).
Mazetti, Mark, and Scott Shane 2009 “C.I.A Had Plan to
Assassinate Qaeda Leaders ” New York Times, July 14.
McKinley, James 1977 Assassination in America New York:
Harper & Row.
Taylor, Stuart, Jr 1998 “Assassination as Self-defense.” New
York Law Journal (November 30).
CROSS REFERENCE
Lincoln, Abraham, “Lincoln Assassination Conspiracy” (In
Focus).
ASSAULT
At common law, an intentional act by one person
that creates an apprehension in another of an
imminent harmful or offensive contact
An assault is carried out by a threat of bodily
harm coupled with an apparent, present ability
to cause the harm It is both a crime and a tort
and, therefore, may result in either criminal or
civil liability Generally, the COMMON LAW
definition is the same in criminal and TORT
LAW There is, however, an additionalCRIMINAL
LAW category of assault consisting of an
attempted but unsuccessful battery
Statutory definitions of assault in the
various jurisdictions throughout the United
States are not substantially different from the
common-law definition
Elements
Generally, the essential elements of assault
consist of an act intended to cause an
apprehension of harmful or offensive contact
that causes apprehension of such contact in the victim
The act required for an assault must be overt Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim
Intent is an essential element of assault In tort law, it can be specific intent—if the assailant intends to cause the apprehension of harmful or offensive contact in the victim—or general intent—if he or she intends to do the act that causes such apprehension In addition, the intent element is satisfied if it is substantially certain, to a REASONABLE PERSON, that the act will cause the result A DEFENDANTwho holds a gun
to a victim’s head possesses the requisite intent, because it is substantially certain that this act will produce an apprehension in the victim In all cases, intent to kill or harm is irrelevant
In criminal law, the attempted battery type
of assault requires a SPECIFIC INTENT to commit battery An intent to frighten will not suffice for this form of assault
There can be no assault if the act does not produce a true apprehension of harm in the victim There must be a reasonable fear of injury The usual test applied is whether the act would induce such apprehension in the mind of
a reasonable person The status of the victim is taken into account A threat made to a child might be sufficient to constitute an assault, while an identical threat made to an adult might not
Virtually all jurisdictions agree that the victim must be aware of the danger This element is not required, however, for the attempted battery type of assault A defendant who throws a rock at a sleeping victim can only
be guilty of the attempted battery assault, because the victim would not be aware of the possible harm
Aggravated Assault
AnAGGRAVATED ASSAULT, punishable in all states
as a FELONY, is committed when a defendant intends to do more than merely frighten the victim Common types of aggravated assaults are those accompanied by an intent to kill, rob,
orRAPE An assault with a dangerous weapon is
ASSAULT 391
Trang 5aggravated if there is an intent to cause serious harm Pointing an unloaded gun at a victim to frighten the individual is not considered an aggravated assault
Punishment
A defendant adjudged to have committed civil assault is liable for damages The question of the amount that should be awarded to the victim is determined by a jury COMPENSATORY DAMAGES, which are aimed at compensating the victim for the injury, are common NOMINAL DAMAGES, a small sum awarded for the invasion of a right even though there has been no substantial injury, may be awarded In some cases, courts allow PUNITIVE DAMAGES, which are designed to punish the defendant for the wrongful conduct
The punishment for criminal assault is a fine, imprisonment, or both Penalties are more severe when the assault is aggravated Many states have statutes dividing criminal assault into various degrees As in aggravated assault, the severity of the crime, the extent of violence and harm, and the criminal intent of the defendant are all factors considered in deter-mining the sentence imposed
FURTHER READINGS Brewer, James D 1994 The Danger from Strangers:
Confronting the Threat of Assault New York: Insight Books.
Duhaime, Lloyd “Assault.” Duhaime.org Available online
at http://www.duhaime.org/LegalDictionary/A/Assault aspx; website home page: http://www.duhaime.org (accessed August 28, 2009).
National Center for Victims of Crime Web site “Assault Victimization ” Washington, D.C.: Justice Department Available online at http://www.ojp.usdoj.gov/ovc/pub- lications/infores/help_series/pdftxt/assaultvictimiza-tion.pdf; website home page: http://www.ojp.usdoj.gov (accessed August 28, 2009).
ASSAULT AND BATTERY Two separate offenses against the person that when used in one expression may be defined as any unlawful and unpermitted touching of another Assault is an act that creates an apprehension in another of an imminent, harmful, or offensive contact The act consists of a threat of harm accompanied by an apparent, present ability to carry out the threat Battery is a harmful or offensive touching of another The main distinction between the two offenses is the existence or nonexistence of a touching or contact While contact is an essential element of battery, there must be an absence of contact for assault Sometimes assault is defined loosely to include battery Assault and battery are offenses in both criminal andTORT LAW; therefore, they can give rise to criminal or civil liability InCRIMINAL LAW,
an assault may additionally be defined as any attempt to commit a battery
At COMMON LAW, both offenses were mis-demeanors As of the early 2000s, under virtually all criminal codes, they are either misdemeanors
or felonies They are characterized as FELONIOUS
when accompanied by a criminal intent, such as
an intent to kill, rob, orRAPE, or when they are committed with a dangerous weapon
Intent Intent is an essential element of both offenses Generally, it is only necessary for theDEFENDANTto have an intent to do the act that causes the harm
In other words, the act must be done voluntarily Although an intent to harm the victim is likely to exist, it is not a required element of either offense There is an exception to this rule for the attempted battery type of criminal assault If a defendant who commits this crime does not have
an intent to harm the victim, the individual cannot be guilty of the offense
Defenses Consent
In almost all states, consent is a defense to civil assault and battery Some jurisdictions hold that
Victimization Rates for Assaults by Crime and Characteristic, 2006
SOURCE: U.S Bureau of Justice Statistics, Criminal Victimization in the United
States, 2006.
Total
Aggravated
Simple
Rate per 1,000 persons age 12 years or older
22.6 18.9
6.3 4.6
16.3 14.3
Male Female
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
392 ASSAULT AND BATTERY
Trang 6in the case of mutual combat, consent will not
suffice and either party may sue the other
Jurisdictions also differ on the question of
whether consent is a defense to criminal assault
and battery
Consent must be given voluntarily in order
to constitute a defense If it is obtained byFRAUD
or duress or is otherwise unlawful, it will not
suffice When an act exceeds the scope of the
given consent, the defense is not available A
person who participates in a football game
implies consent to a certain amount of physical
contact; however, the individual is not deemed
to consent to contact beyond what is commonly
permitted in the sport
Self-Defense Generally, a person may use
whatever degree of force is reasonably necessary
for protection from bodily harm Whether this
defense is valid is usually determined by a jury
A person who initiates a fight cannot claimSELF
-DEFENSEunless the opponent responded with a
greater and unforeseeable degree of force When
an aggressor retreats and is later attacked by the
same opponent, the defense may be asserted
The use ofDEADLY FORCEin response may be
justified if it is initially used by the aggressor
The situation must be such that a REASONABLE
PERSONwould be likely to fear for his or her life
In some states, a person must retreat prior to
using deadly force if the individual can do so in
complete safety A majority of states, however,
allow a person to stand his or her ground even
though there is a means of safe escape
Whether the degree of force used is
reasonable depends upon the circumstances
The usual test applied involves determining
whether a reasonable person in a similar
circumstance would respond with a similar
amount of force Factors such as age, size, and
strength of the parties are also considered
Defense of Others Going to the aid of a
person in distress is a valid defense, provided
the defender is free from fault In some states,
the defender is treated as though he or she
stands in the shoes of the person protected The
defender’s right to claim defense of others
depends upon whether the person protected
had a justified claim of self-defense In a
minority of jurisdictions, the defense may be
asserted if the defender reasonably believed the
THIRD PARTYwas in need of aid
Defense of Property Individuals may use a reasonable amount of force to protect their property The privilege to defend one’s property
is more limited than that of self-defense because society places a lesser value on property than on the integrity of human beings Deadly force is usually not permitted In most states, however, deadly force might be justified if it is used to prevent or stop a FELONY An owner of real property or a person who rightfully possesses it, such as a tenant, may use force against a trespasser Generally, a request to leave the property must be made before the application
of force, unless the request would be futile The amount of force used must be reasonable, and, unless it is necessary for self-defense, the infliction of bodily harm upon an intruder is improper Courts have traditionally been more liberal in allowing the use of force to protect one’s dwelling Subsequent cases, however, indicated that there must be a threat to the personal safety of the occupants
The states are divided on the question of whether a person who is legally entitled to property may use force to recover possession of
it In most jurisdictions, a landowner is not liable for assault and battery if the owner forcibly expels someone who is wrongfully on the property The owner must not, however, use excessive force, and the fact that the person may not be held civilly liable does not relieve the owner of criminal liability In some states, the use of force against a person wrongfully in possession of land is not permitted unless such person has tortiously dispossessed the actor or the actor’s predecessor in title
If possession of real orPERSONAL PROPERTYis
in dispute, the universal rule is that force cannot
be used The dispute must be settled by a court
With respect to personal property, the general view is that an owner may not commit
an assault or battery upon the wrongdoer in order to recover property A majority of jurisdictions recognize the right of an owner
in HOT PURSUIT of stolen property to use a reasonable amount of force to retrieve it In some states, stolen property may be taken back peaceably wherever it is found, even if it is necessary to enter another’s premises In all cases, the infliction of an unreasonable amount
of harm willVITIATEthe defense
Performance of Duty and Authority A per-son may useREASONABLE FORCEwhen it becomes
ASSAULT AND BATTERY 393
Trang 7necessary in the course of performing a duty.
A police officer, for example, may use force when apprehending a criminal In some jur-isdictions, private citizens may also use reason-able force to stop a crime being committed in their presence Certain businesses, such as restaurants or nightclubs, are authorized to hire employees who may use reasonable force to remove persons who disturb other patrons
Court officers, such as judges, may order the removal of disruptive persons who interfere with their duties
Persons with authority in certain relation-ships, such as parents or teachers, may use force
as a disciplinary measure, provided they do not exceed the scope of their authority Punishment may not be cruel or excessive
Punishment The law considers an assault and battery to be
an invasion of the personal security of the victim for which the wrongdoer is required to pay for damages The determination of the amount of damages to which a victim might be entitled if a defendant is found civilly liable is usually made by a jury Generally, aPLAINTIFFis entitled toCOMPENSATORY DAMAGESthat compen-sate for injuries that are both directly and indirectly related to the wrong Examples of compensatory damages include damages for pain and suffering, damages for medical expenses, and damages for lost earnings result-ing from the victim’s inability to work.NOMINAL DAMAGES, given although there is no harm at all,
or merely a slight one, may also be awarded in
an assault and battery action Some jurisdictions allow the award of PUNITIVE DAMAGES They are often given when the offense was committed wantonly or maliciously to punish the defen-dant for the wrongful act and to deter others from engaging in similar acts in the future The defendant might additionally be subject to criminal liability
If a defendant is found criminally liable, the punishment is imprisonment, a fine, or both
The amount of time a defendant must serve in prison depends upon the statute in the particu-lar jurisdiction When the offense is committed with an intent toMURDERor do serious harm, it
is called AGGRAVATED ASSAULT and battery An aggravated assault and battery is often commit-ted with a dangerous weapon, and it is punishable as a felony in all states
FURTHER READINGS Brewer, J D 1994 The Danger from Strangers: Confronting the Threat of Assault New York: Insight.
The Henry Law Firm (Philadelphia) Web site 2009 “Assault
& Battery ” Available online at http://www.henryfirm com/CM/FSDP/PracticeCenter/Criminal-Law/Assault asp?focus=topic&id=1; website home page: http://www henryfirm.com (accessed August 28, 2009).
Larson, Aaron 2003 “Assault and Battery.” ExpertLaw Library Available online at http://www.expertlaw.com/ library/personal_injury/assault_battery.html; website home page: http://www.expertlaw.com (accessed August
28, 2009).
CROSS REFERENCE Hot Pursuit; Nominal Damages; Personal Property; Puni-tive Damages; Real Property.
ASSEMBLY The congregation of a number of persons at the same location
Popularly-elected political assemblies are those mandated by the Constitution and laws, such as the general assembly The lower, or more populous, arm of the legislature in several states is also known as the House of Assembly or the Assembly
Under the FIRST AMENDMENT to the United States Constitution, “Congress shall make no law abridging the right of the people peaceably to assemble.” When a governmental unit sets aside property for the public use, the property is designed as a “public forum” for First Amendment purposes, and the govern-mental unit must properly allow the exercise by the public of constitutional rights, including freedom of assembly Examples of public forums include sidewalks, parks, and libraries The right to assemble includes the right to
PROTEST, although rights of assembly are gener-ally balanced with the need for public order The Supreme Court has held that local govern-ments may constitutionally require those par-ticipating in public parades first to obtain a permit to do so However, the Court has held that an organizer of a parade cannot constitu-tionally examine the content of a message of a parade applicant in determining whether to grant to parade permit Forsyth County, Ga v Nationalist Movement, 505 U.S 123, 112 S Ct
2395, 120 L Ed 2d 101 (1992)
CROSS REFERENCES First Amendment; Freedom of Speech; Public Lands.
394 ASSEMBLY
Trang 8An intentional approval of known facts that are
offered by another for acceptance; agreement;
consent
Express assent is manifest confirmation of a
position for approval Implied assent is that
which the law presumes to exist because the
conduct of the parties demonstrates their
intentions Mutual assent, sometimes called the
meeting of the minds of the parties, is the
reciprocal agreement of each party to accept all
the terms and conditions in a contract
ASSESS
To determine financial worth To ascertain the
amount of damages To fix and adjust the
individual shares to be contributed by several
persons toward a common beneficial objective in
proportion to the benefit each person will receive
To tax by having qualified experts estimate the
value of property by considering the nature of the
property, its size, the value of other comparable
property, and the proportionate share of services
that is used by that property To levy a charge on
the owner of property that has been improved at
the expense of the local government unit, such as
when sewers or sidewalks are installed
ASSESSED VALUATION
The financial worth assigned to property by taxing
authorities that is used as a basis or factor against
which the tax rate is applied
A prescribed amount of the value of each
unit must be paid as taxes in the future In most
cases, the assessed value is not representative of
theFAIR MARKET VALUEof the property
ASSESSMENT
The process by which the financial worth of
property is determined The amount at which an
item is valued A demand by the board of directors
of a corporation for the payment of any money that
is still owed on the purchase of capital stock The
determination of the amount of damages to be
awarded to a plaintiff who has been successful in a
lawsuit The ascertainment of the pro rata share of
taxes to be paid by members of a group of taxpayers
who have directly benefited from a particular
common goal or project according to the benefit
conferred upon the individual or his or her
property This is known as a special assessment
The listing and valuation of property for purposes
of fixing a tax upon it for which its owner will be liable The procedure by which the Internal Revenue Service, or other government department
of taxation, declares that a taxpayer owes additional tax because, for example, the individual has understated personal gross income or has taken deductions to which he or she is not entitled This process is also known as a deficiency assessment
ASSET Real or personal property, whether tangible or intangible, that has financial value and can be used for the payment of its owner’s debts
An accrued asset is one that arises from revenue earned but not yet due For example, an accrued dividend is a share of the net earnings
of a corporation that has been declared but has not yet been paid out to its shareholder(s)
In BANKRUPTCY, an asset is any form of property owned by a debtor who is insolvent that is not exempt from being used to repay debts
For INCOME TAX purposes, a capital asset is property held by a taxpayer for personal enjoyment or investment, such as a home, furniture, stocks and bonds, or an automobile, but does not include inventory, commercial accounts, and notes receivable, depreciable property, commercial property, copyrights, and short-term government obligations When
a capital asset is sold, any gain received is given preferential tax treatment
A current, liquid, or quick asset is an item that can be readily converted to cash, such as stocks and bonds
A fixed asset is one of a permanent or long-term nature used in the operation of a business and not intended for sale
A frozen asset is one that cannot be easily converted into cash, such as REAL ESTATE when there is no market, or that cannot be used because of a legal restriction, such as a
SPENDTHRIFT TRUST
An intangible asset is one to which an arbitrary dollar value is attached because it has
no intrinsic MARKET VALUEbut represents finan-cial value, such as the GOOD WILLof a business,
TRADEMARKS, orPATENTS
ASSIGN
To transfer to another, as to assign one’s right to receive rental income from property to another To
ASSIGN 395
Trang 9designate for a particular function, as to assign an attorney to defend an indigent in a criminal prosecution To specify or point out, as to assign errors in a lower court proceeding on a writ of error that is submitted to request a court to reverse the judgment of the lower court
ASSIGNED ACCOUNT
A type of secured transaction whereby an account receivable is pledged to a bank, factor, or other lender to secure the repayment of a loan
It is common commercial practice for a manufacturer or wholesaler to sell inventory on
OPEN ACCOUNT, a debt owed to the seller of inventory that is to be repaid by its buyer as the merchandise is sold This arrangement creates
an ACCOUNT RECEIVABLE that the seller uses as collateral for a loan
ASSIGNED RISK
A danger or hazard of loss or injury that an insurer will not normally accept for coverage under a policy issued by the insurer, but that the insurance company is required by state law to offer protection against by participating in a pool of insurers who are also compelled to provide coverage
ASSIGNED RISK PLAN
An insurance plan created and imposed by state statute under which persons who normally would
be denied insurance coverage as bad risks are permitted to purchase insurance from a pool
of insurers who must offer coverage to such individuals
ASSIGNMENT
A transfer of rights in real property or personal property to another that gives the recipient—the transferee—the rights that the owner or holder of the property—the transferor—had prior to the transfer
An assignment of wages is the transfer of the right to collect wages from the wage earner to his or her creditor Statutes regulate the extent
to which an assignment may be made
ASSIGNMENT FOR BENEFIT
OF CREDITORS The voluntary transfer of all or most of a debtor’s property to another person in trust so that he or
she will collect any money that is owed to the debtor, sell the debtor’s property, and apply the money received to the payment of the debts, returning any surplus to the debtor
The debtor is the assignor, the transferor; and the person who takes LEGAL TITLE to the property is the assignee
Types There are three types of assignments that are categorized according to the limitations im-posed upon the arrangement A general assign-ment is one involving the transfer of all the debtor’s property for the benefit of all his or her creditors A partial assignment is one in which only part of a debtor’s property is transferred to benefit all the creditors When property is assigned to benefit only designated creditors, it
is a special assignment
The assignment results in the property being beyond the control of the debtor It is different from agency arrangements, pledges, or mortgages Trust Law
Unless otherwise expressly provided, trust law governs assignments for the benefit of creditors The assignee is considered a trustee and his or her duties and responsibilities to the debtor’s creditors are the same as a trustee’s to the beneficiaries of a trust The document that embodies the terms of the assignment authorizes the assignee to liquidate the debtor’s property in satisfaction of the creditors’ claims against the debtor as quickly as possible UnderCOMMON LAW, this was the assign-ee’s chief function Even if the assignment instrument does not expressly empower an assignee to sell the property, the assignee still has the power to do so in order to pay the creditors Creation
It is not necessary for a debtor to obtain the consent of creditors before making an assign-ment for their benefit An owner of property has a right to transfer legal title to it by virtue of ownership The limitation derived from com-mon law that is placed upon its creation is that
it cannot be done to dishonestly deprive a debtor’s creditors of their rights to have property sold to repay debts When an assign-ment for the benefit of creditors is intended
by the debtor to place his or her property beyond the legal reach of creditors, it is called a
FRAUDULENT CONVEYANCE This type of assignment
is void, or legally ineffective, under statutes that
396 ASSIGNED ACCOUNT
Trang 10prohibit such arrangements An assignment by
which the assignor-debtor retains any interest,
benefit, or advantage from the conveyance, such as
keeping the right to revoke the assignment, made
toDEFRAUDcreditors is also a fraudulent
convey-ance, as is an assignment by which the assignee is
required to delay liquidation of the assets
In some jurisdictions, a partial assignment is
considered a fraudulent conveyance because the
creditors are hindered and delayed in receiving
payment if they must seek payment from the
debtor after first being referred to the assignee
Other jurisdictions treat any assignment by a
solvent debtor as fraudulent on the theory that
such an arrangement prevents the immediate
sale of the property so that creditors are delayed
and hindered
Deficiency
A debtor is still liable to pay his or her creditors if
the proceeds from the sale of personal and real
property pursuant to an assignment for the
benefit of creditors are not sufficient to
complete-ly repay the debts When, however, creditors agree
to accept the proceeds in satisfaction of the
debtor’s obligations, such an agreement is called a
COMPOSITION WITH CREDITORS For this reason, assignments for the benefit of creditors are used
by corporate, rather than individual, debtors
Because preferences are permissible under common law, a common-law assignment for the benefit of creditors that provides for preferential payments to designated creditors is not a fraudu-lent conveyance Most courts have held that debtors cannot use preferences to obtain dis-charges from creditors by conditioning prefer-ences on their release from unpaid portions of their debts To do so is considered a fraudulent conveyance, because a creditor would have to accept virtually any condition that the debtor decided upon if the creditor were to receive any money from the assignee
Legality of Assignments Most states have enacted statutes that regulate assignments for the benefit of creditors Some states require that an assignment must comply with statutory requirements or be invalid, whereas in others the debtor may make a common-law assignment, which is regulated by
Assignment for the Benefit of Creditors
This agreement is made between _ [name of assignor] ("Assignor"),
residing at [address], and
_[name of assignee(s)] ("Assignee(s)"),
residing at [address].
The Assignor is unable to pay in full and desires to assign all of [his/her] property to Assignee for the purpose of the payment of this debt.
Therefore, the Assignor hereby assigns, conveys, grants, and transfers to Assignee all of Assignor's property and interests in property,
whether real or personal, tangible or intangible (except property exempt by law from levy and sale under execution) wherever situated, in
trust for the benefit of the Assignee.
[Include description of the property and assets conveyed to the Assignee]
DATED on , 20 at:
_
Assignor
ACCEPTED BY:
_
Assignee
A sample assignment for the benefit of creditors ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
ASSIGNMENT FOR BENEFIT OF CREDITORS 397