Understanding Torts 6th edition by John Diamond, Lawrence Levine, Anita Bernstein ISBN 1531009751 978-1531009755

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ISBN 10: 1531009751
ISBN 13: 978-1531009755
Author: John Diamond, Lawrence Levine, Anita Bernstein 

This Understanding treatise is the perfect complement to first-year tort courses and is suitable for use with any tort casebook. Concise and authoritative, Understanding Torts features:

• Comprehensive and up-to-date coverage of intentional torts, privileges, negligence, cause-in-fact, proximate cause, defenses, joint and several liability, damages, strict liability, products liability, economic torts, malicious prosecution, abuse of process, defamation, and invasion of privacy;
• Judicious use of footnotes to provide full, but not overwhelming, primary and secondary support for textual propositions;
• Clear organization and writing to enhance understanding of basic concepts and major cases covered in a torts course; and
• In-depth analysis of topics that generate the greatest confusion and controversy.

This edition includes explanation and analysis of new Restatement (Third) Intentional Tort provisions including battery, assault, false imprisonment, and transferred intent as well as proposed new Intentional Economic Tort provisions. The text also includes United States Supreme Court developments limiting punitive damages and other new case law.

Understanding Torts  6th Table of contents:

Part I · Scope

Synopsis

[A] The Security Concept

[B] An Organizational Overview of Article 9

[C] The Revised and Amended Uniform Commercial Code

Chapter 1 · Transactions within Article 9

Synopsis

§ 1.01 The Pre-Code Disarray of Secured Transactions Law

§ 1.02 The Unitary Approach of Article 9; Terminology Describing Parties

§ 1.03 General Applicability of Article 9

[A] Consensual Security Interests—§ 9-109(a)(1)

[B] Leases and Consignments

[1] Disguised Leases

[2] Disguised Consignments

[3] True Consignments

§ 1.04 Types of Collateral

[A] Goods—§ 9-102(a)(44)

[1] Consumer Goods and Manufactured Homes—§ 9-102(a)(23), (24), (53), (54)

[2] Farm Products—§ 9-102(a)(34)

[3] Inventory—§ 9-102(a)(48)

[4] Equipment—§ 9-102(a)(33)

[B] Collateral Other than Goods

[1] Accounts—§ 9-102(a)(2), (46)

[2] Instruments—§ 9-102(a)(47), (65)

[3] Chattel Paper—§ 9-102(a)(11), (31), (79)

[4] Controllable Electronic Records—§ 12-102(a)(1)

[5] Documents—§ 9-102(a)(30)

[6] Investment Property—§ 9-102(a)(49)

[7] General Intangibles (Other than Controllable Electronic Records)—§ 9-102(a)(42), (61)

[C] A Comparison of Accounts, Instruments, and Chattel Paper

§ 1.05 Sales of Accounts, Chattel Paper, Payment Intangibles, and Promissory Notes—§ 9-109(a)(3)

§ 1.06 Exclusions from Article 9—§ 9-109(c), (d)

[A] Federal Statutes

[B] Landlord and Statutory Liens

[C] Real Estate Interests

[D] Wage Claim Assignments

[E] Government Transfers

[F] Transfers Irrelevant to Commercial Finance

[1] Specified Transfers of Rights to Payment

[2] Judgment Rights and Tort Claims

[3] Rights of Set-Off

[G] Insurance Assignments

[H] Deposit Accounts

§ 1.07 Relationship between Article 9 and Other Articles

Part II · Attachment of Security Interests

Chapter 2 · Creation and Enforceability of Security Interests

Synopsis

§ 2.01 Overview: The Concept of Attachment

§ 2.02 Creation of an Enforceable Security Interest—§ 9-203

[A] Security Agreement—§ 9-203(b)(3)

[1] The Signature Requirement and Exceptions

[2] Description of the Collateral—§ 9-108

[3] Multiple-Source Approach

[B] Value—§§ 9-203(b)(1), 1-204

[C] Rights or the Power to Transfer Rights in the Collateral—§ 9-203(b)(2)

§ 2.03 Proceeds

[A] Defined—§ 9-102(a)(64)

[B] Attachment—§§ 9-203(f); 9-315(a)(2), (b)

§ 2.04 Attachment to Underlying Obligations—§ 9-203(f), (g)

Chapter 3 · Ongoing Financing Relationships

Synopsis

§ 3.01 Facilitating Clauses Generally

§ 3.02 After-Acquired Property—§ 9-204(a), (b)

[A] General Applicability

[B] Exceptions

§ 3.03 Future Advances—§ 9-204(c)

§ 3.04 Financing Inventory and Accounts

[A] Factoring of Accounts

[B] Financing against Inventory and Accounts

[C] Floor-Planning Inventory

Part III · Perfection of Security Interests

Synopsis

Chapter 4 · Perfection in General

Synopsis

§ 4.01 The Alternative Methods of Perfection—§ 9-310

[A] Filing a Financing Statement

[B] Possession

[C] Automatic Perfection

[D] Temporary Perfection

[E] Perfection under Federal Law

[F] State Certificate-of-Title Statute

[G] Control

[H] Delivery

§ 4.02 When Perfection Occurs—§ 9-308(a)

§ 4.03 Continuity of Perfection—§ 9-308(c)

Chapter 5 · Perfection by Filing

Synopsis

§ 5.01 General Method—§ 9-310(a)

§ 5.02 What Constitutes Filing—§ 9-516

§ 5.03 What to File

[A] Requirements—§§ 9-502, 9-516(b)

[1] Debtor Names—§ 9-503(a)–(c)

[a] Registered Organizations

[b] Decedents’ Estates

[c] Trusts That Are Not Registered Organizations

[d] Organizations That Are Not Registered Organizations

[e] Individuals

[i] Alternative A: The Only-If Approach

[ii] Alternative B: The Safe-Harbor Approach

[2] Authorization—§§ 9-509, 9-510

[3] Addresses

[4] Indication of Collateral

[B] Notice Filing

[1] The Function of Notice

[2] Requests for Information—§§ 9-210; 9-625(f), (g)

[C] Effect of Errors and Changes

[1] Errors—§§ 9-506(a), 9-518

[a] Information Required for Sufficiency

[i] “Standard Search Logic”

[b] Other Required Information

[c] Information Statements

[2] Changes—§§ 9-507, 9-508

[a] Changes Related to the Debtor’s Name

[b] Transferees and New Debtors

[D] May a Financing Statement Function as a Security Agreement?

§ 5.04 When to File—§ 9-502(d)

§ 5.05 Where to File

[A] In What State?

[B] In What Office?—§ 9-501

§ 5.06 Lapse and Termination of Filing

[A] Lapse of Initial Financing Statement—§ 9-515(a)

[B] Continuation Statements—§ 9-515(c)–(e)

[C] Termination Statements and Releases of Collateral—§§ 9-513, 9-509

Chapter 6 · Perfection by Possession and Control

Synopsis

§ 6.01 Possession Generally

[A] History

[B] Possession under Article 9—§ 9-313

§ 6.02 Possessory Security Arrangements in Specific Types of Personal Property

[A] Pledges of Valuables, Instruments, and Chattel Paper

[B] Goods in Storage or Manufacture

[1] Terminal Warehousing—§ 9-312(c)

[2] Field Warehousing—§ 9-312(d)

[C] Goods in Transit

§ 6.03 The Concept of Possession—§ 9-313

[A] Possession by the Secured Party

[B] Possession by Agents and Bailees

[C] Symbolic or Constructive Delivery

§ 6.04 Perfection by Control

[A] Investment Property—§§ 9-314(a), 9-106

[B] Deposit Accounts, Electronic Documents, and Letter-of-Credit Rights—§§ 9-314(a), 9-104, 9-107

[C] Controllable Accounts, Controllable Electronic Records, Controllable Payment Intangibles, and Electronic Money

§ 6.05 Perfection by Possession and Control (Chattel Paper)

[A] Perfection in Chattel Paper Prior to 2022

[B] Perfection in Chattel Paper under the 2022 Amendments

Chapter 7 · Automatic Perfection

Synopsis

§ 7.01 Purchase-Money Security Interests in Consumer Goods—§ 9-309(1)

[A] Application of the Provision

[B] Policy

[C] Exceptions

[D] The “Dual-Status” Rule and the “Transformation” Rule

§ 7.02 Certain Types of Assignments

[A] Isolated Assignment of Account or Payment Intangible—§ 9-309(2)

[B] Sales of Payment Intangibles and Promissory Notes—§ 9-309(3), (4)

[C] Assignment of Health-Care-Insurance Receivables to a Provider—§ 9-309(5)

[D] Investment Property—§ 9-309(9), (10), (11)

[E] Assignment for the Benefit of All Creditors—§ 9-309(12)

[F] Assignment of a Beneficial Interest in a Decedent’s Estate—§ 9-309(13)

[G] Sales of Lottery Winnings—§ 9-309(14)

Chapter 8 · Temporary Perfection and Perfection of Proceeds

Synopsis

§ 8.01 Instruments, Certificated Securities, Documents, and Bailed Goods—§ 9-312(e)–(h)

[A] Initial Perfection

[B] Continuing Perfection for Collateral Made Available to Debtor

§ 8.02 Proceeds—§ 9-315(c)–(e)

[A] The Grace Period of Temporary Perfection

[B] Continuous Perfection

[1] Identifiable Cash Proceeds

[2] Same Filing Office: The Basic Rule

[3] Same Filing Office: The “Cash-Phase” Rule

[4] Timely General Perfection

Chapter 9 · Multistate Transactions

Synopsis

§ 9.01 The Code’s Basic Choice-of-Law Provision

[A] The Reasonable-Relation Test

[B] The Appropriate-Relation Test

§ 9.02 The Article 9 Choice-of-Law Rules

[A] General Rule: Location of the Debtor—§ 9-301(1)

[B] Possessory Security Interest Exception—§ 9-301(2)

[C] Tangible Property Partial Exception for Priority—§ 9-301(3)(C)

[D] Additional Exceptions

[1] Chattel Paper—§ 9-306A

[2] Controllable Accounts, Controllable Electronic Records, and Controllable Payment Intangibles—§ 9-306B

[3] Land-Related Collateral—§ 9-301(3), (4)

[4] Agricultural Liens—§ 9-302

[5] Deposit Accounts—§ 9-304

[6] Investment Property—§ 9-305

[7] Letter-of-Credit Rights—§ 9-306

§ 9.03 Initial Perfection under a Certificate-of-Title Law—§§ 9-303, 9-311

§ 9.04 Perfection Following Change in Governing Law—§ 9-316

[A] Change of Location

[1] Nonpossessory Security Interests

[2] Possessory Security Interests

[B] Transferees and New Debtors

[1] Transferees

[2] New Debtors

[C] Goods Subject to a Certificate-of-Title Act

Part IV · Priorities

Synopsis

[A] The Priority Concept

[B] Understanding Priorities

Chapter 10 · Priority Contests: Between Secured Parties

Synopsis

§ 10.01 First to File or Perfect—§ 9-322(a)

§ 10.02 Future Advances—§§ 9-323, 9-322

§ 10.03 Exceptions for Non-Filing Collateral

[A] Deposit Accounts—§ 9-327

[B] Investment Property—§ 9-328

[C] Letter-of-Credit Rights—§ 9-329

[D] Controllable Electronic Records, Controllable Accounts, and Controllable Payment Intangibles—§ 9-326A

[E] Chattel Paper, Instruments, Negotiable Documents, Securities, Controllable Electronic Records, Controllable Accounts, and Controllable Payment Intangibles—§§ 9-330, 9-331

§ 10.04 Purchase-Money Security Interests

[A] Purchase-Money Security Interests Generally

[1] Adoption of the “Dual-Status” Rule

[B] Application to Secured Party versus Secured Party Priorities

[1] Collateral Other than Inventory—§ 9-324(a)

[2] Inventory—§ 9-324(b), (c)

§ 10.05 Proceeds

[A] Non-Purchase-Money Security Interests

[1] General Rule (First to File or Perfect)—§ 9-322(b)(1)

[2] Special Rules

[a] Special Rule on Non-Temporal Priority—§ 9-322(c)(2)

[b] Special Rule on Temporal Priority—§ 9-322(d), (e)

[B] Purchase-Money Security Interests—§ 9-324(a), (b)

Chapter 11 · Priority Contests: Purchasers versus Perfected Secured Parties

Synopsis

§ 11.01 General Rule on Disposition—§ 9-315(a)

§ 11.02 Authorized Disposition—§ 9-315(a)(1)

[A] Express Authorization

[B] Implied Authorization

§ 11.03 Priorities

[A] Goods

[1] Buyers and Lessees of Goods in Ordinary Course of Business—§§ 9-320(a), 9-321(c)

[a] Defining the Buyer or Lessee—§§ 1-201(b)(9), 2A-103(o)

[b] Created by Its Seller or Lessor

[2] Consumer Buyers of Consumer Goods—§ 9-320(b)

[3] Future Advances—§ 9-323(d)–(g)

[B] Licensees of General Intangibles in Ordinary Course of Business—§ 9-321(a), (b)

[C] Chattel Paper and Instruments—§ 9-330

[1] Chattel Paper

[2] Instruments

[D] Negotiable Instruments, Negotiable Documents, Securities, Controllable Electronic Records, Controllable Accounts, and Controllable Payment Intangibles—§ 9-331

[E] Funds in Deposit Accounts; Tangible and Electronic Money—§§ 9-332, 9-340

Chapter 12 · Priority Contests: Purchasers and Lien Creditors versus Unperfected Secured Parties

Synopsis

§ 12.01 Article 9’s Residual Priority Rule—§ 9-201(a)

§ 12.02 Lien Creditors

[A] General Rule—§ 9-317(a)(2)

[B] Purchase-Money Security Interests—§ 9-317(e)

[C] Future Advances—§ 9-323(b)

§ 12.03 Purchasers Other than Secured Parties

[A] General Rules—§ 9-317(b)–(d), (f)–(i)

[B] Purchase-Money Security Interests—§ 9-317(e)

[C] Future Advances—§ 9-323(d)–(g)

§ 12.04 Claimants Not Expressly Governed by Article 9

Chapter 13 · Creditors with Liens Arising by Operation of Law

Synopsis

§ 13.01 Possessory Liens That Arise by Operation of Law—§ 9-333

§ 13.02 Agricultural Liens—§§ 9-317, 9-322(a)(1)

§ 13.03 Federal Tax Liens

Chapter 14 · The Farm Products Rule

Synopsis

§ 14.01 The Article 9 Rule

§ 14.02 The Federal Food Security Act

[A] Advance-Notice Approach

[B] State Central-Registry Approach

§ 14.03 A Critique

Chapter 15 · Fixtures, Accessions, and Commingled Goods

Synopsis

§ 15.01 Fixtures Defined—§ 9-102(a)(41)

§ 15.02 Fixture Filings—§ 9-102(a)(40)

§ 15.03 Priorities in Fixtures

[A] The Code’s Residual Rule—§ 9-334(c)

[B] The Purchase-Money Priority Exception—§ 9-334(d)

[C] The “First-to-File-or-Record” Exception—§ 9-334(e)(1)

[D] The Nonreliance-Creditor Exception—§ 9-334(e)(3)

[E] The Exception for “Readily Removable Collateral”—§ 9-334(e)(2)

[F] Special Rules for Construction Mortgages—§ 9-334(h)

[G] Exception for Manufactured Homes—§ 9-335(e)(4)

[H] Exception Based on Consent or Right of Removal—§ 9-334(f)

§ 15.04 Secured Party’s Right to Remove Fixtures after Default—§ 9-604(c), (d)

§ 15.05 Accessions—§ 9-335

[A] Nature of the Interest

[B] Priorities

§ 15.06 Commingled Goods—§ 9-336

[A] Rights

[B] Priorities

Chapter 16 · Bankruptcy

Synopsis

§ 16.01 Background

[A] Shifting the Legal Landscape

[B] The Bankruptcy Estate and Bankruptcy Jurisdiction

[C] Bankruptcy Chapters and Bankruptcy Trustees

§ 16.02 Contrasting Secured and Unsecured Claims

[A] What Is a Claim?

[B] The Allowance of Claims

[C] Secured Claims, Unsecured Claims, and Valuation

§ 16.03 The Automatic Stay

[A] Nature and Scope

[B] Relief from Stay

[1] Relief for “Cause”—11 U.S.C. § 362(d)(1)

[a] Lack of Adequate Protection

[i] Value Preservation

[ii] Opportunity Costs

[b] Other Cause for Relief

[2] Relief under 11 U.S.C. § 362(d)(2)

[a] Does Debtor Have Equity in the Collateral?

[b] Is the Collateral Necessary for Debtor’s Reorganization?

[3] Procedural Issues and Burden of Proof

§ 16.04 The Trustee’s Avoidance Powers

[A] Background

[B] Strong-Arm Power—11 U.S.C. § 544(a)

[1] The Trustee as Hypothetical Lien Creditor versus the Unperfected Secured Party

[2] Relation-Back Priority—11 U.S.C. § 546(b)

[C] Subrogation to State-Law Avoidance Powers of an Unsecured Creditor—11 U.S.C. § 544(b)(1)

[D] Power to Avoid Statutory Liens

[E] Power to Avoid Preferential Transfers—11 U.S.C. § 547

[1] Background

[2] Proving the Elements of a Preference

[3] Determining When the Transfer Occurred

[4] Exceptions to the Trustee’s Preference Avoidance Power

[a] Substantially Contemporaneous Exchanges for New Value

[b] “Ordinary-Course” Payments

[c] Security Interests Granted in Conjunction with Enabling Loans

[d] Transfers Ameliorating an Earlier Preference

[e] Floating Liens in Inventory and Receivables

[f] Statutory Liens

[g] Statutory Floor for Consumer Transfers

[h] Statutory Floor for Non-Consumer Transfers

[5] Preference Actions as Nuisance Litigation

[F] Power to Avoid Fraudulent Transfers

[1] Intentionally Fraudulent Transfers—11 U.S.C. § 548(a)(1)(A)

[2] Constructively Fraudulent Transfers—11 U.S.C. § 548(a)(1)(B)

[3] Pre-Bankruptcy Foreclosure Sales as Fraudulent Transfers

[4] Avoiding Fraudulent Transfers under State Law—11 U.S.C. § 544(b)(1)

§ 16.05 The Trustee’s Right to Assert the Debtor’s Defenses—11 U.S.C. § 558

§ 16.06 Security Interests in After-Acquired Property—11 U.S.C. § 552

[A] The General Rule Cutting Off Liens against After-Acquired Property—11 U.S.C. § 552(a)

[B] Proceeds of Pre-Petition Collateral—11 U.S.C. § 552(b)(1)

§ 16.07 The Debtor’s Right to Claim Exempt Property

[A] State and Federal Exemptions

[B] The Debtor’s Power to Avoid Liens against Exempt Property

§ 16.08 The Chapter 7 Debtor’s Right of Redemption—11 U.S.C. § 722

§ 16.09 Reaffirmation by the Debtor—11 U.S.C. § 524(c)

[A] Reaffirmation Agreements

[B] Retention of Collateral without Either Redemption or Reaffirmation

§ 16.10 “Cramdown” in Chapter 13 and the “Negative Equity” Dilemma

[A] Introduction

[B] Section 1325(a)(5) and the “Hanging Paragraph”

[C] The Hanging Paragraph and the “Negative Equity” Conundrum

Part V · Default

Chapter 17 · Default and Its Consequences

Synopsis

§ 17.01 Importance of the Concept of Default

[A] Waiver of Default

[B] Acceleration Clauses and Insecurity Clauses

§ 17.02 Remedies Available upon Default

[A] Types of Remedies

[B] Cumulation of Remedies

Chapter 18 · The Foreclosure Process

Synopsis

§ 18.01 Repossession—§ 9-609

[A] Self-Help

[1] “Breach of the Peace”

[2] Disabling the Collateral

[B] Judicial Action

§ 18.02 Disposition of Collateral—§§ 9-610–9-615

[A] The Standard of Commercial Reasonableness

[1] Duty to Publicize

[2] Disposition within a Reasonable Time

[3] The Method of Disposition: Public versus Private

[4] Is There a Duty to “Fix Up” the Collateral?

[5] Price as an Indicator of Commercial Unreasonableness

[B] Notification of Disposition

[1] Persons Entitled to Notification

[2] Time Period for Notification

[3] Form and Content of Notification

[4] When Notification Is Excused

[C] Whether Secured Party Can Purchase at Disposition

[D] Application of Proceeds of Disposition

[E] Property Rights of Transferee at Disposition

§ 18.03 Foreclosure on Rights to Payment and Other Intangible Assets—§ 9-607

§ 18.04 Strict Foreclosure—§§ 9-620–9-622

§ 18.05 Redemption—§ 9-623

Chapter 19 · The Consequences of Creditor Misbehavior

Synopsis

§ 19.01 Overview

[A] Pre-Disposition Remedies

[B] Monetary Damages

[1] Wrongful Repossession

[2] Wrongful Disposition of the Collateral

[3] Failure to Use Reasonable Care Regarding Collateral in Secured Party’s Possession

[4] Failure to File or Send Termination Statement

[5] Filing of Unauthorized Financing Statement

[6] Failure to Provide Statement of Account or List of Collateral

§ 19.02 Secured Party’s Right to Deficiency Judgment

§ 19.03 The Consumer Penalty—§ 9-625(c)

Table of Cases

Table of Statutes

Index

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