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Topic: Merger Doctrine

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	Merger doctrine - Wikipedia, the free encyclopedia
		The merger doctrine in civil procedure stands for the proposition that when litigants agree to a settlement, and then seek to have their settlement incorporated into a court order, the court order actually extinguishes the settlement and replaces it with the authority of the court to supervise the behavior of the parties.
		"doctrine of merger") was the notion that marriage caused a woman's legal identity to merge with that of her husband.
		In the law of real property, the merger doctrine stands for the proposition that the contract for the conveyance of property merges into the deed of conveyance; therefore, any guarantees made in the contract that are not reflected in the deed are extinguished when the deed is conveyed to the buyer of the property.
	en.wikipedia.org /wiki/Merger_doctrine (729 words)

	[No title] (Site not responding. Last check: 2007-09-15)
		Merger doctrine precludes copyright protection for some expressions of ideas if the idea behind the expression is such that it can be expressed only in one way or in a very limited number of ways.
		The doctrine prevents an author from monopolizing an idea by copyrighting a few expressions of it.[62] Courts vary in their treatment of merger doctrine as either a threshold bar to copyright protection or simply a defense to the charge of infringement on grounds of substantial similarity.
		He suggested that the merger determination ought to be made at the copyrightability stage, in order to avoid the "not useful variety of doublespeak" in which two identical works are held not to be "substantially similar" for infringement purposes because of application of the merger doctrine.
	law.richmond.edu /jolt/v5i3/tussey.txt (6181 words)

	MERGER DOCTRINE/EASEMENTS/TITLE UNDERWRITING
		There was one dissenting opinion, by a Justice who argued (among other things) that the doctrine of merger is a "â€™flexible, equitable doctrine,â€™ the application of which depends on the facts or circumstances of the particular case at issue, including the intent of the parties." (Citations omitted.) I would agree.
		Martineau and Co., 983 P.2d 1107, it appears Utah leans toward the "it depends on the intentions of the parties" side of the applying of the merger doctrine, at least where the interest of the mortgagor in the mortgaged property is transferred to, or acquired by, the mortgagee.
		The doctrine of merger is one of presumed intention in Texas and is subject to rebuttal if merger is challenged.
	www.firstam.com /landsakes/html/email/091800merge.html (1462 words)

	00-1076 (Site not responding. Last check: 2007-09-15)
		The trial court concluded that under the doctrine of merger, the debt was extinguished when the deficiency judgment was entered, and the Bank's only remedy was to execute on the deficiency judgment.
		In Waukesha Concrete, we applied the doctrine to preclude recovery of the contractual rate of interest (rather than the statutory rate of 12% on judgments), concluding that, upon the entry of the judgment on the claim for breach of contract, the claim for interest under the contract was extinguished.
		Third, the doctrine of claim preclusion does not bar this suit because the defendants in this suit were not parties to the first suit and the cause of action to foreclose the Marshall mortgage is distinct from the causes of action in the first suit.
	www.courts.state.wi.us /html/ca/00/00-1076.htm (4480 words)

	Beware the Merger Doctrine -- Rights in a Real Estate Contract can be Lost under the Doctrine of Merger
		The merger doctrine says that all prior negotiations and agreements--including that purchase agreement--are deemed "merged" into the deed.
		The merger doctrine has had a long and consistent history of enforcement in Minnesota, but a recent decision of the Minnesota Court of Appeals may be signaling a change in how the doctrine is applied.
		Again in 1993 the court of appeals addressed the merger doctrine and enforced it, this time to excuse a buyer under a contract for deed from an obligation to pay the seller's mortgage payments.
	library.findlaw.com /1999/Jun/1/127328.html (1295 words)

	State v. Wanrow
		She [*4] asks this court to consider once again applying the doctrine of merger** to the crime of second-degree felony-murder, i.e., that the assault resulting in the homicide is merged with the homicide so as to lose its separate identity, and accordingly to hold that a death resulting from a felonious assault cannot be felony-murder.
		Nonetheless, we are now firmly convinced that adoption of the merger doctrine is not compelled either by principles of sound statutory construction or by the state or federal constitutions, and that adoption of the doctrine [1321] by this court would be an unwarranted and [*5] insupportable invasion of the legislative function in defining crimes.
		Petitioner urges this court to adopt the merger doctrine as a matter of statutory construction where the underlying felony is second-degree assault.
	mason.gmu.edu /~weitzman/wanrow.htm (5016 words)

	nygonzalez
		This appeal tests the application of the merger doctrine in a prosecution for kidnapping and attempted rape, where the defendant is convicted of kidnapping but acquitted of the rape charge.
		In applying the merger doctrine, we conclude that, whether defendant is acquitted or convicted of the underlying crime, the standard remains the same: did the Legislature intend to punish the restraint or abduction separately as kidnapping?
		The merger doctrine is thus a means of effectuating the Legislature's intent by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping.
	wings.buffalo.edu /law/bclc/web/nygonz~1.htm (2178 words)

	applegate.html
		But as various facets of the merger doctrine have become firmly established by our decisions, we have stated that we will not consider those particular facets unless the merger issue was first raised in the trial court.
		Thus, a synthesis of our decisions would be: generally, merger questions must be raised in the trial court, especially those merger questions that are relatively settled; but in exceptional circumstances this court reserves the right to consider a merger question not raised in the trial court, especially when it presents a novel problem.
		If, instead, the defendant were permitted to ignore merger in the trial court and to appeal on the sole ground that the trial court erred in not merging, he would be correct, but the parties and public would assume the expense of an appeal that could have been avoided.
	www.ric.edu /tschmeling/courses/applegate.html (1967 words)

	99 Wn.2d 413, STATE v. VLADOVIC
		The doctrine of merger does not apply to preclude prosecution for two separate offenses arising out of a single act unless proof of one of the offenses requires proof that the other offense was also committed.
		Supreme Court: Holding that neither the merger doctrine nor the double jeopardy prohibition precluded the multiple convictions, that the evidence was sufficient to convict, and that the firearm finding was applicable to the kidnapping conviction, the court AFFIRMS the decision of the Court of Appeals.
		Kidnapping merger differs fundamentally from general merger in that it is part of the definition of the crime, I.E., no kidnapping exists absent a detention or movement beyond that merely incidental to another crime.
	www.mrsc.org /mc/courts/supreme/099wn2d/099wn2d0413.htm (7361 words)

	91 Wn.2d 301, STATE v. WANROW
		She asks this court to consider once again applying the doctrine of merger to the crime of second-degree felony-murder, I.E., that the assault resulting in the homicide is merged with the homicide so as to lose its separate identity, and accordingly to hold that a death resulting from a felonious assault cannot be felony-murder.
		Nonetheless, we are now firmly convinced that adoption of the merger doctrine is not compelled either by principles of sound statutory construction or by the state or federal constitutions, and that adoption of the doctrine by this court would be an unwarranted and insupportable invasion of the legislative function in defining crimes.
		The argument is that without the merger doctrine, any homicide, intentional or not, can be proved as a second-degree murder under subsection (2) of RCW 9.48.040 by alleging a willful assault.
	www.mrsc.org /mc/courts/supreme/091wn2d/091wn2d0301.htm (4847 words)

	Legal Definition of Merger Rule/Doctrine
		Once the agreement is merged into the court's order, neither party any longer has a right of action based on the agreement because the obligations imposed are not imposed by the agreement but by the order and are enforceable as such through contempt and other sanctions available to the court.
		Although this "merger" rule has traditionally been applied in the context of divorce actions, where a preceding property or maintenance agreement is incorporated into the interlocutory decree, the policy reasons for the rule are just as applicable in the discovery context.
		The "merger" doctrine does not require the preceding agreement to be specifically incorporated by reference into the trial court's protective order or that the parties or their attorneys request an incorporation of the preceding agreement.
	www.lectlaw.com /def2/m061.htm (256 words)

	merger - Hutchinson encyclopedia article about merger
		The linking of two or more companies, either by creating a new organization by consolidating the original companies or by absorption by one company of the others.
		Unlike a takeover, which is not always a voluntary fusion of the parties, a merger is the result of an agreement.
		There were many mergers in the UK preceding the Big Bang of 1986 designed to improve the competitiveness of companies.
	encyclopedia.farlex.com /Merger (128 words)

	Common Law Technical Rules
		Both the Rule in Shelley's Case and the Doctrine of Worthier Title are intent defeating rules, "rules of law," or of "property," or of "policy." They applied despite the strongest expression by the transferor that she or he really wanted the estate to pass to A's "heirs" after A's death.
		So did the Doctrine of Worthier Title, as A and O could convey their estates to a third party, C, and the doctrine of merger would apply to give C a fee simple absolute.
		If the Doctrine does not apply, the trust is irrevocable and O will not be permitted to reach the assets in the trust.
	www.law.pitt.edu /fox/property/CH06/techruls.htm (1120 words)

	[No title]
		I. The incipiency doctrine originated in the CellerKefauver Amendment to the Clayton Act [FN5] and in the earliest Supreme Court interpretations of the prohibition against mergers the effect of which "may be substantially to lessen competition or to tend to create a monopoly." [FN6] In Brown Shoe Co. v.
		A wave of mergers may also be generated by a fear of not having a suitable choice of partners, or a fear that the antitrust door could close after the market becomes too concentrated.
		If the Merger Guidelines are not amended and the enforcers tried, for example, to block a merger on the grounds that it would be likely to cause a merger wave, defendants would cite the Guidelines's omission of this factor as an additional reason for the court to reject the argument.
	home.ubalt.edu /NTLALAND/ResurrectingIncipiencyAntitrust2001.doc (10062 words)

	[No title]
		In addition, the court held the doctrine of corporate successor liability by de facto merger brought CERCLA liability arising from the conduct of Old Whitmoyer within the scope of the indemnity clauses of the Purchase Agreement.
		In addition, we believe that under the facts of this case the doctrine of de facto merger cannot be used to modify an indemnity provision drafted by two sophisticated corporations.
		Under these circumstances, we believe it was not appropriate for the district court to apply the de facto merger doctrine to alter the effect of the indemnification provision.
	vls.law.vill.edu /locator/3d/July1996/96a1351p.txt (4166 words)

	[No title]
		Voluntary manslaughter is also always exempt from the felony murder doctrine because it is illogical to assign a lesser punishment for an actor who commits a murder in the "heat of passion," but then turn around and bump the crime back up to murder under the felony murder doctrine.
		The best historical analysis of the felony murder doctrine, critique of Garrett, and conclusion that the felony murder merger doctrine is not a part of Texas statutory law is contained in Presiding Judge (retired) Onion's relatively recent opinion in Rodriguez v.
		In Johnson, this Court noted that the "merger doctrine" set out in Garrett would prohibit conviction for felony murder unless the defendant had committed an underlying felony plus an additional act (other than the conduct covered by the underlying felony) that was clearly dangerous to human life.
	www.cca.courts.state.tx.us /opinions/176700b.htm (2323 words)

	The Idea-Expression Dichotomy in Copyright Law
		By jumping to the merger argument, the court, much like the CONTU Report when it focused upon the "idea-expression identity,"[FN172] emphasized not whether the work as copied constituted idea or expression, but shifted the focus to whether the idea of the copyrighted work was capable of expression in other forms.
		From another perspective, the merger doctrine is not as much of a problem as the idea-expression dichotomy generally.
		The merger theory is said to balance the interests of the copyright owner in controlling or profiting from the work against the interests of society in gaining access to the work.
	www.edwardsamuels.com /copyright/beyond/articles/ideapt1-20.htm (13105 words)

	Antitrust By Chance: A Unified Theory of Horizontal Merger Doctrine
		Section 7 of the Clayton Act (as amended in 1950) prohibits any merger or acquisition where "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." [FN28] The Department of Justice is authorized to prevent violations through equitable proceedings in the federal district courts.
		Kraft General Foods, Inc., [FN112] a merger that barely exceeded the HHI thresholds was subjected to a sophisticated economic analysis.
		Breaking with precedent, [FN153] William F. Baxter, the chief architect of the 1982 DOJ Horizontal Merger Guidelines, stated in 1983 that as a matter of policy, a trend toward market concentration would not be considered as a factor in analyzing horizontal mergers.
	www.unclaw.com /chin/scholarship/chance.htm (10122 words)

	Jack Murray Reference, Deeds in Lieu: Subsequent Foreclosure of Subordinate Mortgage (Site not responding. Last check: 2007-09-15)
		1993) ("[t]he doctrine of merger is not favored and will not be applied in the absence of an intent on the part of the mortgagee, or unless the application of the doctrine is require by equities of a particular case" [quoting Construction Machinery v.
		We agree that equitable considerations preclude Mitchell Automotive from avoiding merger when the effect is not to protect its own interests from the creditors of the Lamont Group (the mortgagor), but rather to prefer the debt of its parent corporation over the debt owed to USL as a third party.
		Group, Inc., supra, effectively employed the "balancing of the equities" doctrine to thwart what appeared to be an attempted preferential transfer or fraudulent conveyance of mortgaged property by a deed in lieu of foreclosure (although the court never decided this precise issue) to avoid an obligation to an innocent third-party judgment creditor.
	www.firstam.com /faf/html/cust/jm-deedslieu.html?print=yes (2162 words)

	DD 11/20 Contract Warranties and the Rule of Bubba (Site not responding. Last check: 2007-09-15)
		In essence the doctrine is just a shorthand statement that if the buyer knowingly and without objection accepts title that does not meet the standards set forth in the agreement, the buyer is deemed to have waived the deficiencies.
		In any event, the modern merger doctrine properly should track the probable intentions of the parties as indicated by their actions.
		This is unlike the merger "rule of law" doctrine we all learned in law school - useful primarily for cutting off equally archaic contingent remainers.
	dirt.umkc.edu /dd112095.htm (606 words)

	Douglas Lichtman, Copyright As A Rule Of Evidence, 52 Duke L. J. 683 (2003) (Site not responding. Last check: 2007-09-15)
		Doctrines that serve this evidentiary function include some doctrines for which an evidentiary purpose is readily apparent (for example, the requirement that eligible works be fixed in tangible form), and some for which the link is quite subtle (for example, the rule against protecting work that lacks creativity).
		The notice requirement was a valuable limiting doctrine in that it actually did serve to exclude from copyright all sorts of casual expression that was not disseminated with copyright in mind.
		Without the merger doctrine, courts in some number of cases would mistakenly find impermissible copying where, in truth, only the unprotected idea was taken.
	www.law.duke.edu /journals/dlj/articles/dlj52p683.htm (17972 words)

	Volume V, Issue 3, Spring 1999 (Site not responding. Last check: 2007-09-15)
		{36} Merger doctrine is a collateral branch of the idea/expression dichotomy which informs the entire body of copyright law.
		[62] Courts vary in their treatment of merger doctrine as either a threshold bar to copyright protection or simply a defense to the charge of infringement on grounds of substantial similarity.
		The analysis is reminiscent of the analysis in software cases, an area of law in which merger doctrine has become particularly important, because options for expression are limited by industry standards and interoperability requirements.
	law.richmond.edu /jolt/v5i3/tussey.html (8030 words)

	Lawson v State
		Therefore, the assault in the instant case is a lesser-included offense of manslaughter, and pursuant to the so-called “merger doctrine,” a conviction for felony murder is prohibited.
		Today’s decision effectively abolishes the merger doctrine that is mandated by statute, see § 19.02(b)(3), and that we delineated and clarified only two years ago in Johnson, supra.
		Under the majority opinion, the merger doctrine can always be avoided simply by doing as the state did in this case: charge felony murder by charging manslaughter and aggravated assault, but omit the term “recklessly” from the aggravated assault charge.
	www.bakers-legal-pages.com /cca/opinions/176700d.htm (775 words)

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