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CASE NAME: MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino S.p.A.
The issue before the court was whether the parol evidence rule of domestic law applies to the interpretation of a contract governed by CISG. The rule excludes evidence of an oral agreement which contradicts or varies the terms of a subsequent or contemporaneous written contract.
A U.S. retailer, the buyer, agreed orally with the seller, an Italian manufacturer of ceramic tiles, on the basic terms for the purchase of tiles. The parties then recorded these terms in the seller's standard, pre-printed order form and the president of the buyer's company signed the form on behalf of the company. The form was printed in the Italian language and contained terms on both the front and back. Immediately below the signature line on the front of the form was language, in Italian, stating that the buyer was aware of the terms on the back of the form and agreed to them. Four months later the parties entered into a requirements contract and pursuant to that contract the buyer ordered tiles on numerous occasions using the seller's order form.
The buyer brought a breach of contract action in the U.S. District Court for the Southern District of Florida against the seller for failure to deliver the tiles ordered. In defense, the seller relied on a standard term on its order form which authorized it to suspend deliveries if the buyer failed to pay and the seller brought a counterclaim for nonpayment. To buyer's response that the tiles were nonconforming, the seller stated that the buyer had not given written notice of defects within ten days of receipt as required by a term on the order form. The buyer presented affidavits from its president and two employees of the seller stating that the parties did not intend to be bound by the standard terms on the order form. The court excluded this evidence on the basis of the domestic parol evidence rule, gave effect to the standard terms and granted summary judgment to the seller.
The U.S. Court of Appeals for the Eleventh Circuit reversed the district court's grant of summary judgment. The court held that article 8(3) CISG precludes the application of the parol evidence rule. The court expressly rejected a statement to the contrary in Beijing Metals & Minerals Import/Export Corp. v. American Business Center [CLOUT case no. 24]. The court also rejected the seller's argument that the parol evidence rule was a procedural rule outside the scope of CISG. Consequently, the appellate court found that the affidavits of the subjective intent of both parties raised sufficient factual question as to the terms of the parties' contract under article 8(1) CISG that summary judgment was inappropriate.
The key issue of the case is whether CISG Article 8 overrides the U.S. parol evidence rule. The court ruled, it does.
"We begin by observing that the parol evidence rule, contrary to its title, is a substantive rule of law, not a rule of evidence. . . . The rule does not purport to exclude a particular type of evidence as an 'untrustworthy or undesirable' way of proving a fact, but prevents a litigant from attempting to show 'the fact itself -- the fact that the terms of the agreement are other than those in the writing.'. . . As such, a federal district court cannot simply apply the parol evidence rule as a procedural matter -- as it might if excluding a particular type of evidence under the Federal Rules of Evidence, which apply in federal court regardless of the source of the substantive rule of decision.
"An example demonstrates [the different approach to be applied to procedural matters]. The CISG provides that a contract for the sale of goods need not be in writing and that the parties may prove the contract 'by any means, including witnesses.' CISG, art. 11. Nevertheless, a party seeking to prove a contract in such a manner in federal court could not do so in a way that violated in the rule against hearsay. See Fed. R. Evid. 802 (barring hearsay evidence). A federal district court applies the Federal Rules of Evidence because these rules are considered procedural, regardless of the source of the law that governs the substantive decision. . . ." n. 13.
"[A]rticle 8(3) of the CISG expressly directs courts to give 'due consideration . . . to all relevant circumstances of the case including the negotations . . ." to determine the intent of the parties. Given article 8(1)'s directive to use the intent of the parties to interpret their statements and conduct, article 8(3) is a clear instruction to admit and consider parol evidence regarding the negotiations to the extent they reveal the parties' subjective intent. . . ."
The court endorsed the position that "the parol evidence rule is not viable in CISG cases in light of article 8 of the Convention" [emphasis added].
"One of the primary factors motivating the negotiation and adoption of the CISG was to provide parties to international contracts for the sale of goods with some degree of certainty as to the principles of law that would govern potential disputes and remove the previous doubt regarding which party's legal system might otherwise apply. . . . Courts applying the CISG cannot, therefore, upset the parties' reliance on the Convention by substituting familiar principles of domestic law when the Convention requires a different result. We may only achieve the directives of good faith and uniformity in contracts under the CISG by interpreting and applying the plain language of article 8(3) as written and obeying its directive to consider th[e] type of parol evidence [submitted]."
The court also discussed instances in which a party is not familiar with the language of a contract he signed.
"[Buyer] makes much of the fact that the written order form is entirely in Italian and that [buyer's president], who signed the contract on [buyer's] behalf directly below th[e] provision incorporating the terms on the reverse of the form, neither spoke nor read Italian. This fact is of no assistance to [buyer's] position. We find it nothing short of astounding that an individual purportedly experienced in commercial matters, would sign a contract in a foreign language and expect not to be bound simply because he could not comprehend its terms. We find nothing in the CISG that might counsel this type of reckless behavior and nothing that signals any retreat from the proposition [under domestic law] that parties who sign contracts will be bound by them regardless of whether they have read them or understood them. . . ." n.9.
This case requires us to determine whether a court must consider parol evidence in a contract dispute governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). The district court granted summary judgment on behalf of the [seller], relying on certain terms and provisions that appeared on the reverse of a pre-printed form contract for the sale of ceramic tiles. The [buyer] sought to rely on a number of affidavits that tended to show both that the parties had arrived at an oral contract before memorializing their agreement in writing and that they subjectively intended not to apply the terms on the reverse of the contract to their agreements. The magistrate judge held that the affidavits did not raise an issue of material fact and recommended that the district court grant summary judgment based on the terms of the contract. The district court agreed with the magistrate judge's reasoning and entered summary judgment in the [seller's] favor. We REVERSE.
The plaintiff-appellant, MCC-Marble Ceramic, Inc. [buyer], is a Florida corporation engaged in the retail sale of tiles, and the defendant-appellee, Ceramica Nuova S.p.A. [seller] is an Italian corporation engaged in the manufacture of ceramic tiles. In October 1990, [buyer's] president, Juan Carlos Mo[n]zon, met representatives of [seller] at a trade fair in Bologna, Italy and negotiated an agreement to purchase ceramic tiles from [seller] based on samples he examined at the trade fair. Monzon, who spoke no Italian, communicated with Gianni Silingardi, then [seller's] commercial director, through a translator, Gianfranco Copelli, who was himself an agent of [seller]. The parties apparently arrived at an oral agreement on the crucial terms of price, quality, quantity, delivery and payment. The parties then recorded these terms on one of [seller's] standard, pre-printed order forms and Monzon signed the contract on [buyer's] behalf. According to [buyer], the parties also entered into a requirements contract in February 1991, subject to which [seller] agreed to supply [buyer] with high grade ceramic tile at specific discounts as long as [buyer] purchased sufficient quantities of tile. [Buyer] completed a number of additional order forms requesting tile deliveries pursuant to that agreement.
"[T]he buyer hereby states that he is aware of the sales conditions stated on the reverse and that he expressly approves of them with special reference to those numbered 1-2-3-4-5-6-7-8." R2-126, Exh. 3 � 5 ("Maselli Aff.").
"[D]efault or delay in payment within the time agreed upon gives [seller] the right to . . . suspend or cancel the contract itself and to cancel possible other pending contracts and the buyer does not have the right to indemnification or damages." Id. � 6.
"Possible complaints for defects of the merchandise must be made in writing by means of a certified letter within and not later than 10 days after receipt of the merchandise. . . . Maselli Aff. � 6.
Although there is evidence to support [buyer's] claims that it complained about the quality of the deliveries it received, [buyer] never submitted any written complaints.
[Buyer] did not dispute these underlying facts before the district court, but argued that the parties never intended the terms and conditions printed on the reverse of the order form to apply to their agreements. As evidence for this assertion, [buyer] submitted Monzon's affidavit, which claims that [buyer] had no subjective intent to be bound by those terms and that [seller] was aware of this intent. [Buyer] also filed affidavits from Silingardi and Copelli, [seller's] representatives at the trade fair, which support Monzon's claim that the parties subjectively intended not to be bound by the terms on the reverse of the order form. The magistrate judge held that the affidavits, even if true, did not raise an issue of material fact regarding the interpretation or applicability of the terms of the written contracts and the district court accepted his recommendation to award summary judgment in [seller's] favor. [Buyer] then filed this timely appeal.
We review a district court's grant of summary judgment de novo and apply the same standards as the district court. See Harris v. H&W Contracting Co., 102 F.3d 516, 518 (11th Cir. 1996). Summary judgment is appropriate when the pleadings, depositions, and affidavits reveal that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
The parties to this case agree that the CISG governs their dispute because the United States, where [buyer] has its place of business, and Italy, where [seller] has its place of business, are both States Party to the Convention. See CISG, art. 1. Article 8 of the CISG governs the interpretation of international contracts for the sale of goods and forms the basis of [buyer's] appeal from the district court's grant of summary judgment in [seller's] favor. [Buyer] argues that the magistrate judge and the district court improperly ignored evidence that [buyer] submitted regarding the parties' subjective intent when they memorialized the terms of their agreement on [seller's] pre-printed form contract, and that the magistrate judge erred by applying the parol evidence rule in derogation of the CISG.
Contrary to what is familiar practice in United States courts, the CISG appears to permit a substantial inquiry into the parties' subjective intent, even if the parties did not engage in any objectively ascertainable means of registering this intent. Article 8(1) of the CISG instructs courts to interpret the "statements . . . and other conduct of a party . . . according to his intent" as long as the other party "knew or could not have been unaware" of that intent. The plain language of the Convention, therefore, requires an inquiry into a party's subjective intent as long as the other party to the contract was aware of that intent.
In this case, [buyer] has submitted three affidavits that discuss the purported subjective intent of the parties to the initial agreement concluded between [buyer] and [seller] in October 1990. All three affidavits discuss the preliminary negotiations and report that the parties arrived at an oral agreement for [seller] to supply quantities of a specific grade of ceramic tile to [buyer] at an agreed upon price. The affidavits state that the "oral agreement established the essential terms of quality, quantity, description of goods, delivery, price and payment." See R3-133 � 9 ("Silingardi Aff."); R1-51 � 7 ("Copelli Aff."); R1- 47 � 7 ("Monzon Aff."). The affidavits also note that the parties memorialized the terms of their oral agreement on a standard [seller] order form, but all three affiants contend that the parties subjectively intended not to be bound by the terms on the reverse of that form despite a provision directly below the signature line that expressly and specifically incorporated those terms.
The terms on the reverse of the contract give [seller] the right to suspend or cancel all contracts in the event of a buyer's non-payment and require a buyer to make a written report of all defects within ten days. As the magistrate judge's report and recommendation makes clear, if these terms applied to the agreements between [buyer] and [seller], summary judgment would be appropriate because [buyer] failed to make any written complaints about the quality of tile it received and [seller] has established [buyer's] non-payment of a number of invoices amounting to $108,389.40 and 102,053,846.00 Italian lira.
Article 8(1) of the CISG requires a court to consider this evidence of the parties' subjective intent. Contrary to the magistrate judge's report, which the district court endorsed and adopted, article 8(1) does not focus on interpreting the parties' statements alone. Although we agree with the magistrate judge's conclusion that no "interpretation" of the contract's terms could support [buyer's] position, article 8(1) also requires a court to consider subjective intent while interpreting the conduct of the parties. The CISG's language, therefore, requires courts to consider evidence of a party's subjective intent when signing a contract if the other party to the contract was aware of that intent at the time. This is precisely the type of evidence that [buyer] has provided through the Silingardi, Copelli, and Monzon affidavits, which discuss not only Monzon's intent as [buyer's] representative but also discuss the intent of [seller's] representatives and their knowledge that Monzon did not intend to agree to the terms on the reverse of the form contract. This acknowledgment that [seller's] representatives were aware of Monzon's subjective intent puts this case squarely within article 8(1) of the CISG, and therefore requires the court to consider [buyer's] evidence as it interprets the parties' conduct.
Given our determination that the magistrate judge and the district court should have considered [buyer's] affidavits regarding the parties' subjective intentions, we must address a question of first impression in this circuit: whether the parol evidence rule, which bars evidence of an earlier oral contract that contradicts or varies the terms of a subsequent or contemporaneous written contract, plays any role in cases involving the CISG. We begin by observing that the parol evidence rule, contrary to its title, is a substantive rule of law, not a rule of evidence. See II E. Allen Farnsworth, Farnsworth on Contracts, � 7.2 at 194 (1990). The rule does not purport to exclude a particular type of evidence as an "untrustworthy or undesirable" way of proving a fact, but prevents a litigant from attempting to show "the fact itself -- the fact that the terms of the agreement are other than those in the writing." Id. As such, a federal district court cannot simply apply the parol evidence rule as a procedural matter -- as it might if excluding a particular type of evidence under the Federal Rules of Evidence, which apply in federal court regardless of the source of the substantive rule of decision. Cf. id. � 7.2 at 196.
The CISG itself contains no express statement on the role of parol evidence. See Honnold, Uniform Law � 110 at 170. It is clear, however, that the drafters of the CISG were comfortable with the concept of permitting parties to rely on oral contracts because they eschewed any statutes of fraud provision and expressly provided for the enforcement of oral contracts. Compare CISG, art. 11 (a contract of sale need not be concluded or evidenced in writing) with U.C.C. � 2-201 (precluding the enforcement of oral contracts for the sale of goods involving more than $500). Moreover, article 8(3) of the CISG expressly directs courts to give "due consideration . . . to all relevant circumstances of the case including the negotiations . . ." to determine the intent of the parties. Given article 8(1)'s directive to use the intent of the parties to interpret their statements and conduct, article 8(3) is a clear instruction to admit and consider parol evidence regarding the negotiations to the extent they reveal the parties' subjective intent.
Despite the CISG's broad scope, surprisingly few cases have applied the Convention in the United States, see Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027-28 (2d Cir. 1995) (observing that "there is virtually no case law under the Convention"), and only two reported decisions touch upon the parol evidence rule, both in dicta. One court has concluded, much as we have above, that the parol evidence rule is not viable in CISG cases in light of article 8 of the Convention. In Filanto, a district court addressed the differences between the UCC and the CISG on the issues of offer and acceptance and the battle of the forms. See 789 F. Supp. at 1238. After engaging in a thorough analysis of how the CISG applied to the dispute before it, the district court tangentially observed that article 8(3) "essentially rejects . . . the parol evidence rule." Id. at 1238 n.7. Another court, however, appears to have arrived at a contrary conclusion. In Beijing Metals & Minerals Import/Export Corp. v. American Bus. Ctr., Inc., 993 F.2d 1178 (5th Cir. 1993), a defendant sought to avoid summary judgment on a contract claim by relying on evidence of contemporaneously negotiated oral terms that the parties had not included in their written agreement. The plaintiff, a Chinese corporation, relied on Texas law in its complaint while the defendant, apparently a Texas corporation, asserted that the CISG governed the dispute. Id. at 1183 n.9. Without resolving the choice of law question, the Fifth Circuit cited Filanto for the proposition that there have been very few reported cases applying the CISG in the United States, and stated that the parol evidence rule would apply regardless of whether Texas law or the CISG governed the dispute. Beijing Metals, 993 F.2d at 1183 n.9. The opinion does not acknowledge Filanto's more applicable dictum that the parol evidence rule does not apply to CISG cases nor does it conduct any analysis of the Convention to support its conclusion. In fact, the Fifth Circuit did not undertake to interpret the CISG in a manner that would arrive at a result consistent with the parol evidence rule but instead explained that it would apply the rule as developed at Texas common law. See id. at 1183 n.10. As persuasive authority for this court, the Beijing Metals opinion is not particularly persuasive on this point.
"[T]he language of Article 8(3) that 'due consideration is to be given to all relevant circumstances of the case' seems adequate to override any domestic rule that would bar a tribunal from considering the relevance of other agreements. . . . Article 8(3) relieves tribunals from domestic rules that might bar them from 'considering' any evidence between the parties that is relevant. This added flexibility for interpretation is consistent with a growing body of opinion that the 'parol evidence rule' has been an embarrassment for the administration of modern transactions." Honnnold, Uniform Law � 110 at 170-71.
Indeed, only one commentator has made any serious attempt to reconcile the parol evidence rule with the CISG. See David H. Moore, Note, The Parol Evidence Rule and the United Nations Convention on Contracts for the International Sale of Goods: Justifying Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc., 1995 BYU L. Rev. 1347. Moore argues that the parol evidence rule often permits the admission of evidence discussed in article 8(3), and that the rule could be an appropriate way to discern what consideration is "due" under article 8(3) to evidence of a parol nature. Id. at 1361-63. He also argues that the parol evidence rule, by limiting the incentive for perjury and pleading prior understandings in bad faith, promotes good faith and uniformity in the interpretation of contracts and therefore is in harmony with the principles of the CISG, as expressed in article 7. Id. at 1366-70. The answer to both these arguments, however, is the same: although jurisdictions in the United States have found the parol evidence rule helpful to promote good faith and uniformity in contract, as well as an appropriate answer to the question of how much consideration to give parol evidence, a wide number of other States Party to the CISG have rejected the rule in their domestic jurisdictions. One of the primary factors motivating the negotiation and adoption of the CISG was to provide parties to international contracts for the sale of goods with some degree of certainty as to the principles of law that would govern potential disputes and remove the previous doubt regarding which party's legal system might otherwise apply. See Letter of Transmittal from Ronald Reagan, President of the United States, to the United States Senate, reprinted at 15 U.S.C. app. 70, 71 (1997). Courts applying the CISG cannot, therefore, upset the parties' reliance on the Convention by substituting familiar principles of domestic law when the Convention requires a different result. We may only achieve the directives of good faith and uniformity in contracts under the CISG by interpreting and applying the plain language of article 8(3) as written and obeying its directive to consider this type of parol evidence.
This is not to say that parties to an international contract for the sale of goods cannot depend on written contracts or that parol evidence regarding subjective contractual intent need always prevent a party relying on a written agreement from securing summary judgment. To the contrary, most cases will not present a situation (as exists in this case) in which both parties to the contract acknowledge a subjective intent not to be bound by the terms of a pre-printed writing. In most cases, therefore, article 8(2) of the CISG will apply, and objective evidence will provide the basis for the court's decision. See Honnold, Uniform Law � 107 at 164-65. Consequently, a party to a contract governed by the CISG will not be able to avoid the terms of a contract and force a jury trial simply by submitting an affidavit which states that he or she did not have the subjective intent to be bound by the contract's terms. Cf. Klopfenstein v. Pargeter, 597 F.2d 150, 152 (9th Cir. 1979) (affirming summary judgment despite the appellant's submission of his own affidavit regarding his subjective intent: "Undisclosed, subjective intentions are immaterial in [a] commercial transaction, especially when contradicted by objective conduct. Thus, the affidavit has no legal effect even if its averments are accepted as wholly truthful."). Moreover, to the extent parties wish to avoid parol evidence problems they can do so by including a merger clause in their agreement that extinguishes any and all prior agreements and understandings not expressed in the writing.
Considering [buyer's] affidavits in this case, however, we conclude that the magistrate judge and the district court improperly granted summary judgment in favor of [seller]. Although the affidavits are, as [seller] observes, relatively conclusory and unsupported by facts that would objectively establish [buyer's] intent not to be bound by the conditions on the reverse of the form, article 8(1) requires a court to consider evidence of a party's subjective intent when the other party was aware of it, and the Silingardi and Copelli affidavits provide that evidence. This is not to say that the affidavits are conclusive proof of what the parties intended. A reasonable finder of fact, for example, could disregard testimony that purportedly sophisticated international merchants signed a contract without intending to be bound as simply too incredible to believe and hold [buyer] to the conditions printed on the reverse of the contract. Nevertheless, the affidavits raise an issue of material fact regarding the parties' intent to incorporate the provisions on the reverse of the form contract. If the finder of fact determines that the parties did not intend to rely on those provisions, then the more general provisions of the CISG will govern the outcome of the dispute.
[Buyer's] affidavits, however, do not discuss all of the transactions and orders that [buyer] placed with [seller]. Each of the affidavits discusses the parties' subjective intent surrounding the initial order [buyer] placed with [seller] in October 1990. The Copelli affidavit also discusses a February 1991 requirements contract between the parties and reports that the parties subjectively did not intend the terms on the reverse of the [seller] order form to apply to that contract either. See Copelli Aff. � 12. [Seller], however, submitted the affidavit of its chairman, Vincenzo Maselli, which describes at least three other orders from [buyer] on form contracts dated January 15, 1991, April 27, 1991, and May 4, 1991, in addition to the October 1990 contract. See Maselli Aff. � 2, 25. [Buyer's] affidavits do not discuss the subjective intent of the parties to be bound by language in those contracts, and [seller], therefore, argues that we should affirm summary judgment to the extent damages can be traced to those order forms. It is unclear from the record, however, whether all of these contracts contained the terms that appeared in the October 1990 contract. Moreover, because article 8 requires a court to consider any "practices which the parties have established between themselves, usages and any subsequent conduct of the parties" in interpreting contracts, CISG, art. 8(3), whether the parties intended to adhere to the ten day limit for complaints, as stated on the reverse of the initial contract, will have an impact on whether [buyer] was bound to adhere to the limit on subsequent deliveries. Since material issues of fact remain regarding the interpretation of the remaining contracts between [buyer] and [seller], we cannot affirm any portion of the district court's summary judgment in [seller]'s favor.
[Buyer] asks us to reverse the district court's grant of summary judgment in favor of [seller]. The district court's decision rests on pre-printed contractual terms and conditions incorporated on the reverse of a standard order form that [buyer's] president signed on the company's behalf. Nevertheless, we conclude that the CISG, which governs international contracts for the sale of goods, precludes summary judgment in this case because [buyer] has raised an issue of material fact concerning the parties' subjective intent to be bound by the terms on the reverse of the pre-printed contract. The CISG also precludes the application of the parol evidence rule, which would otherwise bar the consideration of evidence concerning a prior or contemporaneously negotiated oral agreement. Accordingly, we REVERSE the district court's grant of summary judgment and REMAND this case for further proceedings consistent with this opinion.
1. United Nations Convention on Contracts for the International Sale of Goods, opened for signature April 11, 1980, S. Treaty Doc. No. 9, 98th Cong., 1st Sess. 22 (1983), 19 I.L.M. 671, reprinted at, 15 U.S.C. app. 52 (1997).
2. Since this case is before us on summary judgment, we consider the facts in the light most favorable to [buyer], the non-moving party, and grant [buyer] the benefit of every factual inference. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
3. [Seller] provided the translation of the contract. [Buyer] has never contested its accuracy.
4. Article 50 of the CISG permits a buyer to reduce payment for nonconforming goods in proportion to the nonconformity under certain conditions. See CISG, art. 50.
5. The United States Senate ratified the CISG in 1986, and the United States deposited its instrument of ratification at the United Nations Headquarters in New York on December 11, 1986. See Preface to Convention, reprinted at 15 U.S.C. app. 52 (1997). The Convention entered into force between the United States and the other States Parties, including Italy, on January 1, 1988. See id.; Filanto S.p.A. v. Chilewich Int'l Corp., 789 F. Supp. 1229, 1237 (S.D.N.Y. 1992).
(a) When the States are Contracting States . . . " CISG, art. 1.
"(2) If the preceding paragraph is not applicable, statements made by and conduct of a party are to be interpreted according to the understanding a reasonable person of the same kind as the other party would have had in the same circumstances.
"(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties." CISG, art. 8.
8. In the United States, the legislatures, courts, and the legal academy have voiced a preference for relying on objective manifestations of the parties' intentions. For example, Article Two of the Uniform Commercial Code, which most states have enacted in some form or another to govern contracts for the sale of goods, is replete with references to standards of commercial reasonableness. See e.g., U.C.C. � 2-206 (referring to reasonable means of accepting an offer); see also Lucy v. Zehmer, 196 Va. 493, 503, 84 S.E.2d 516, 522 (1954) ("Whether the writing signed . . . was the result of a serious offer . . . and a serious acceptance . . . , or was a serious offer . . . and an acceptance in secret jest . . . , in either event it constituted a binding contract of sale between the parties."). Justice Holmes expressed the philosophy behind this focus on the objective in forceful terms: "The law has nothing to do with the actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct." Oliver W. Holmes, The Common Law 242 (Howe ed. 1963) quoted in John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention � 107 at 164 (2d ed. 1991) (hereinafter Honnold, Uniform Law).
10. The magistrate judge's report correctly notes that [buyer] has not sought an interpretation of those terms, but rather to exclude them altogether. We agree that such an approach "would render terms of written contracts virtually meaningless and severely diminish the reliability of commercial contracts." R2-102 at 5-6.
11. Without this crucial acknowledgment, we would interpret the contract and the parties' actions according to article 8(2), which directs courts to rely on objective evidence of the parties' intent. On the facts of this case it seems readily apparent that [buyer's] affidavits provide no evidence that Monzon's actions would have made his alleged subjective intent not to be bound by the terms of the contract known to "the understanding that a reasonable person . . . would have had in the same circumstances." CISG, art 8(2).
"(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement." U.C.C. � 2-202.
13. An example demonstrates this point. The CISG provides that a contract for the sale of goods need not be in writing and that the parties may prove the contract "by any means, including witnesses." CISG, art. 11. Nevertheless, a party seeking to prove a contract in such a manner in federal court could not do so in a way that violated in the rule against hearsay. See Fed. R. Evid. 802 (barring hearsay evidence). A federal district court applies the Federal Rules of Evidence because these rules are considered procedural, regardless of the source of the law that governs the substantive decision. Cf. Farnsworth on Contracts � 7.2 at 196 & n. 16 (citing cases).
14. Moreover, the parties have not cited us to any persuasive authority from the courts of other States Party to the CISG. Our own research uncovered a promising source for such decisions at <http://www.cisg.law.pace.edu>, but produced no cases that address the issue of parol evidence.
15. The Beijing Metals opinion does not state the place of the defendant's incorporation, but the defendant must have been a United States corporation because the court noted that the case was a "diversity action." Beijing Metals, 993 F.2d at 1183 n.9. Cf. 28 U.S.C. � 1332 (providing no statutory grant for suits between aliens unless a citizen of a State is present); 15 James W. Moore, Moore's Federal Practice � 102.77 (3d ed. 1998) (observing that diversity jurisdiction is not present in suits between two foreign citizens).
16. The Fifth Circuit unwittingly may have solved the problem in the very next footnote, where it observed that the agreement between the parties, which attempted to settle a dispute regarding an earlier sales contract, was not itself a contract for the sale of goods and therefore fell outside the Uniform Commercial Code. Beijing Metals, 993 F.2d at 1183 n.10. See CISG, art. 1(1) ("This Convention applies to contracts of sale of goods . . . .") (emphasis added).
17. See also Louis F. Del Duca, et al., Sales Under the Uniform Commercial Code and the Convention on International Sale of Goods, 173-74 (1993); Henry D. Gabriel, A Primer on the United Nations Convention on the International Sale of Goods: From the Perspective of the Uniform Commercial Code, 7 Ind. Int'l & Comp. L. Rev. 279, 281 (1997) ("Subjective intent is given primary consideration . . . . [Article 8] allows open-ended reliance on parol evidence . . . ."); Herbert Berstein & Joseph Lookofsky, Understanding the CISG in Europe 29 (1997) ("[T]he CISG has dispensed with the parol evidence rule which might otherwise operate to exclude extrinsic evidence under the law of certain Common Law countries."); Harry M. Fletchner, Recent Developments: CISG, 14 J.L. & Com. 153, 157 (1995) (criticizing the Beijing Metals opinion and noting that "[c]ommentators generally agree that article 8(3) rejects the approach to the parol evidence questions taken by U.S. domestic law.") (collecting authority); John E. Murray, Jr., An Essay on the Formation of Contracts and Related Matters Under the United Nations Convention on Contracts for the International Sale of Goods, 8 J.L. & Com. 11, 12 (1988) ("We are struck by a new world where there is . . . no parol evidence rule, among other differences."); Peter Winship, Domesticating International Commercial Law: Revising U.C.C. Article 2 in Light of the United Nations Sales Convention, 37 Loy. L. Rev. 43, 57 (1991).
"(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based . . ." CISG, art. 7.
19. See Ronald A. Brand & Harry M. Fletchner, Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Convention, 12 J.L. & Com. 239, 252 (1993) (arguing that article 8(3) of the CISG will not permit the consideration of parol evidence when the parties have expressly excluded oral modifications of the contract pursuant to article 29); see also I Albert Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods 125 (1989) (counseling the use of a merger clause to compensate for the absence of a parol evidence rule in the CISG).
20. [Seller] attempts to explain and undermine the affidavit of its representatives during the transaction, by calling Silingardi a "disgruntled" former employee. Appellee's Br. at 11, 39. Silingardi's alleged feelings towards his former employer may indeed be relevant to undermine the credibility of his assertions, but that is a matter for the finder of fact, not for this court on summary judgment.
21. Article 50, which permits a buyer to reduce payment to a seller who delivers nonconforming goods, and article 39, which deprives the buyer of that right if the buyer fails to give the seller notice specifying the defect in the goods delivered within a reasonable time, will be of primary importance. Although we may affirm a district court's grant of summary judgment if it is correct for any reason, even if not relied upon below, see United States v. $121,100.00 in United States Currency, 999 F.2d 1503, 1507 (11th Cir. 1993), and the parties have touched upon these articles in their briefs, they have not provided us with sufficient information to resolve their dispute under the CISG. [Buyer's] affidavits indicate that [buyer] may have complained about the quality of the tile [seller] delivered, but they have provided no authority regarding what constitutes a reasonable time for such a complaint in this context. Accordingly, we decline to affirm the district court's grant of summary judgment on this basis.
22. The Maselli affidavit claims that at the February 4, 1991 contract contained the terms in question, see Maselli Aff. �� 5-6, but [buyer] argues that at least some of the forms were never translated into English and, therefore, the record does not reveal whether the terms appear in all the contracts. We leave the resolution of these matters to the district court on remand.

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Inventory data (e.g. name, address).
Contact data (e.g. e.mail, telephone number).
Content data (e.g. text inputs, photographs, videos).
Meta / data communication (e.g. device-information, ip-addresses).
Visitors and users of the online offer (in the following the affected persons are referred to collectively as “users”).
“Responsible person” means the natural or legal person or public authority or institution that decides, alone or in concert with others, on the purposes and means of processing personal data.
Insofar as we commission third parties to process data on the basis of a so-called “contract processing contract”, this is done in accordance with Art. 28 GDPR.
If we process data in a third country (outside the European Union (EU) or the European Economic Area (EEA)) or if this is done in the context of the use of third party services or disclosure or transmission of data to third parties, this is done only if there is Fulfillment of our contractual obligations, on the basis of your consent, on the basis of a legal obligation or on the basis of our legitimate interests. Subject to legal or contractual permissions, we process or have the data processed in a third country only in the presence of the special conditions of Art. 44 et seq. DSGVO. That the processing is e.g. on the basis of specific guarantees, such as the officially recognized level of data protection (eg for the US through the Privacy Shield) or compliance with officially recognized special contractual obligations (so-called “standard contractual clauses”).
via e-mail to: privacy@gamerpro.co After you have revoked your consent, we will use your information solely to provide you with information about our service and we will refrain from submitting any further advertising to you.
When contacting us (for example, by contact form, email or via social media) your details for processing the contact request and their processing acc. Art. 6 para. 1 lit. b) GDPR processed. The information can be stored in a Customer Relationship Management System (“CRM System”) or comparable request organization. We delete the requests, if they are no longer required. We check the necessity every three years; Furthermore, the legal archiving obligations apply.
Included in the newsletter is a so-called “web-beacon”, i. a pixel-sized file which is retrieved from our server when the newsletter is opened or from its server in the case of the use of a mailing service provider. As part of this call, technical information, such as information about the browser and your system, as well as your IP address and time of the call will be collected.
For a contract, in which you have to pay a fee, provided that the purchase was made via the website and/or applications, we need your credit card information (credit card number, country, holder of the credit card) or your paypal account to pay with in accordance with Art. 6 (1) (a) and (f) GDPR credit card, credit card verification code (CVV code) and expiration date of your credit card), your name, bank account number and bank code if you choose the direct debit. Please note that your credit card details or PayPal payments are collected and processed by your payment processor in relation to your payments for the service.
Based on our legitimate interests (ie interest in the analysis, optimization and economic operation of our online offer within the meaning of Art. 6 (1) lit. GDPR), we make use of content or services offered by third-party providers in order to provide their content and services Services, such as Include videos (hereinafter collectively referred to as “Content”).
This always presupposes that the third-party providers of this content perceive the IP address of the users, since they could not send the content to their browser without the IP address. The IP address is therefore required for the presentation of this content. We endeavor to use only content whose respective providers use the IP address solely for the delivery of the content. Third parties may also use so-called pixel tags (invisible graphics, also referred to as “web beacons”) for statistical or marketing purposes. The “pixel tags” can be used to evaluate information such as visitor traffic on the pages of this website and applications. The pseudonymous information may also be stored in cookies on the user’s device and may include, but is not limited to, technical information about the browser and operating system, referring web sites, visit time, and other information regarding the use of our online offer.
We also use social plugins (“plugins”) of the social network facebook.com, which is provided by Facebook Ireland, on the basis of our legitimate interests (analysis, optimization and economical operation of our online offer as defined in Art. 6 (1) lit. GDPR) Ltd., 4 Grand Canal Square, Grand Canal Harbor, Dublin 2, Ireland (“Facebook”). The plugins can represent interaction elements or content (eg videos, graphics or text contributions) and can be recognized by one of the Facebook logos (white “f” on blue tile, the terms “Like”, “Like” or a “thumbs up” sign ) or are marked with the addition “Facebook Social Plugin”. The list and appearance of Facebook Social Plugins can be viewed here: https://developers.facebook.com/docs/plugins/.
Features of the Twitter service are included on our pages (Twitter, Inc. 1355 Market St, Suite 900, San Francisco, CA 94103, USA). By clicking on the Twitter button and the “Re-Tweet” function, the websites you visit are linked to your Twitter account and shared with other users. This data is also transmitted to Twitter. We point out that we as the provider of the pages are not aware of the content of the transmitted data and their use by Twitter.
On our pages are integrated plugins of the social network Google+ (Google Inc., 1600 Amphitheater, Parkway Mountain View, CA 94043, USA). The Google + plugins can be recognized by the G + logo on our site. If you click the “G + -Button” while you are logged into your Google + account, you can link the contents of our pages to your Google + profile. This allows Google to associate the visit of our pages with your user account. We point out that we as the provider of the pages are not aware of the content of the transmitted data and their use by Google.
http://www.google.com/adsense/ Google Adsense allows us to display targeted text, video or image advertisements on our website. Google Adsense is a third-party cookie set by google. There will be no personal information about our visitors, which are collected by the cookie, to third parties. The expiry date of the cookies depends on how often the user visits our website. The period can be from a few days to more than a year.
Google Safeframe is a technology to enhance the delivery of ads on websites and allow the measurement of viewable impressions. It allows us to protect our site and users from having a degraded experience due to faulty advertisements.
http://www.doubleclickbygoogle.com We use Google Publisher Tag to use more granular levels of inventory in the DFP front-end. We are able to create much more specific targeting based on your site content.
WHAT CAN I DO IF I DO NOT ACCEPT COOKIES?

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ROBERT LEE GREENFIELD, Defendant and Appellant.
Jeffrey Schuwarger for Defendant and Appellant.
Ira Reiner, City Attorney, Jack L. Brown and Pamela Victorine, Deputy City Attorneys, for Plaintiff and Respondent.
Defendant had been permanently enjoined from harassing W.R. He was charged with violating this court order on eight occasions in February and March of 1980, violations of Penal Code section 166, subdivision 4, criminal contempt. Following his conviction, defendant appeals.
The trial court refused to allow the expert testimony of a psychiatrist in order to establish a diminished capacity defense. Defendant believes this was error.
(1) It is well settled that the defense of diminished capacity may not be raised by a defendant charged with a general intent crime, irrespective of the defendant's impaired mental state. (People v. Drew (1978) 22 Cal.3d 333, 344 [149 Cal. Rptr. 275, 583 P.2d 1318]; People v. Wetmore (1978) 22 Cal.3d 318, 328 [149 Cal. Rptr. 265, 583 P.2d 1308]; People v. Nance (1972) 25 Cal. App.3d 925, 929 [102 Cal. Rptr. 266].) Therefore, as the court in People v. Drew, supra, 22 Cal.3d 333, pointed out, “[t]he effectiveness of the defense, and the disposition of the defendant, thus turn less on the nature and seriousness of the defendant's mental disability than on the technical structure of the criminal law.” (Id., at p. 344.) We must, therefore, determine whether the crime of contempt is a general intent or specific intent crime. This appears to be a question of first impression.
This conclusion is consistent with the purposes of the inherent and statutory contempt power of courts. (5) Contempt is designed “`to insure the orderly administration of justice' (Hays v. Superior Court (1940) 16 Cal.2d 260, 264 [105 P.2d 975]) and maintain `the dignity and authority of the court'” (Mowrer v. Superior Court (1969) 3 Cal. App.3d 223, 230 [83 Cal. Rptr. 125]), and to allow the court to exercise 5*5 reasonable control of proceedings before it. (Cooper v. Superior Court (1961) 55 Cal.2d 291, 301 [10 Cal. Rptr. 842, 359 P.2d 274]). Disobedience of a lawful order of the court, or open disruption of court proceedings, can destroy the orderly administration of justice irrespective of whether or not the actor has the specific intent to so violate the order or disrupt the proceedings. Were we to hold otherwise, the ability of the court to insure obedience to its orders or control proceedings would be seriously impaired.
(6) Since the crime of contempt requires no specific intent, the defense of diminished capacity was not available to defendant herein, and the trial court did not err in refusing to allow the psychiatric testimony on that issue.
We also find no merit in defendant's second contention, that the evidence was insufficient to establish that defendant had knowledge of the court order. By it, defendant seeks to have this court reweigh the evidence. (7) That is not the function of an appellate court. We must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal. Rptr. 431, 606 P.2d 738].) Our examination of the record convinces us that substantial evidence supports the conviction.
Foster, Acting P.J., and Jones, J., concurred.

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Bachmann World OHG des Bachmann Rudolf & Co.
The company Privacy Officer of Bachmann World OHG des Bachmann Rudolf und Co, (Dept. Bachmann Knifeart), can be reached at the address above, Attn. to Teresa Bachmann, and at info@bachmann-world.com.
Description of the type of Web browser used, operating system used and the name of your Access-Provider.
b) When subscribing to our newsletter If you have issued your explicit consent in accordance with Art. 6 (1) 1st sentence point a) GDPR, we will use your email address in order to send you our regular newsletter, or to send you a specific white paper. You only need to provide your email address to receive the newsletter. You can cancel your subscription at any time, for example by using the link located at the end of each newsletter. Alternatively, you can of course send your cancellation request by email at any time to info@bachmann-knifeart.com.
c) When using our contact form For questions and queries of any kind, we offer you the option of contacting us using the form made available on this website. This requires you to enter a valid email address, in order that we can know who sent the inquiry, and how we can respond to it. The processing of data for the purposes of making contact with us is performed in accordance with Art. 6 (1) 1st sentence point a) GDPR on the basis of the consent voluntarily provided by you.
• This is lawful and, in accordance with Art. 6 (1) 1st sentence point b) GDPR, is necessary for the performance of a contract with you.
a) Tracking-Tools The tracking measures listed below and used by us are performed on the basis of GDPR Art. 6 (1) sentence 1 (f). We seek to ensure the needs-appropriate design and continuous optimisation of our website with the tracking measures we use. At the same time, we use the tracking measures in order to statistically register the use of our website and to analyse it for the purpose of optimising our content for you. These interests are considered justified within the meaning of the aforementioned regulation. The particular data processing purposes and data categories can be found in the various tracking tools.
Social plug-ins of the Facebook, Twitter and Instagram social networks may be integrated on our website and on the basis of GDPR Art. 6 (1) sentence 1 (f) to make our company better known. The underlying promotional purpose is considered a justified interest within the meaning of the GDPR. Responsibility for operation conforming to data protection standards must be ensured by the respective providers. The integration of these plug-ins by us is done by means of the so-called two-click method to protect visitors to our website in the best possible way.
• According to Article 77 GDPR, you have the right to complain to a superior authority. As a rule, you may find such authority at your place of residence, your workplace or our company domicile.
Insofar as your personal data is processed based on legitimate interests as defined under Article 6(1) 1st sentence f) GDPR, you have the right - in accordance with Art. 21 GDPR - to object to your personal data being processed, provided that there are grounds pertaining to your particular circumstances or that the objection is directed towards direct advertising. In the latter case, you have a general right of objection, which we will implement without the indication of any special circumstances. If you wish to exercise your right to revoke consent or your right to object, simply send us an email to info@bachmann-world.com.
We use the common SSL (Secure Socket Layer) procedure on our website in connection with the highest encryption level, which is supported by your browser. This is usually a 256-bit encryption. If your browser does not support 256-bit encryption, we use 128-bit v3 technology instead. You will recognise whether specific pages on our website are transmitted in encrypted form from the closed image of a lock or the key symbol in the lower status bar of your browser. By the way, we use suitable technical and organisational safety procedures to protect your data against inadvertent or wilful manipulation, partial or complete loss, destruction or against the unauthorised access by third parties. We constantly improve these security measures as the technology advances.
The Raiffeisen online payment system effectively protects you and your customers from unwanted guests, since sensitive credit card data travels along a protected route offered by our banking network.

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The U.S. Patent and Trademark Office won’t consider an invention novel enough to qualify for a patent if a publicly available printed publication “anticipated” it. With a recent ruling, the U.S. Court of Appeals for the Federal Circuit (which hears all appeals concerning patents) provided some guidance on how it determines whether a publication was publicly available on the relevant date. This article reviews the case and the court’s opinion and includes a short sidebar highlighting the effect of the U.S. Supreme Court’s decision in SAS Institute, Inc. v. Iancu, mandating that the Patent Trial and Appeal Board institute inter partes review either on all of the claims a petitioner has challenged or none of them.
Nobel Biocare Svcs. AG v. Instradent USA, Inc., No. 17-2256, Sept. 13, 2018, Fed. Cir.
SAS Institute, Inc. v. Iancu, No. 16–969, April 24, 2018, S.Ct.
The 2016 ruling by a trial court in a copyright infringement case over Led Zeppelin’s classic rock anthem “Stairway to Heaven” garnered a lot of attention. The U.S. Court of Appeals for the Ninth Circuit has now sent the case back to the trial court (which ruled in the band’s favor). This article looks at the court’s ruling, which provides some valuable light on how to prove copyright infringement of music in the process.
Skidmore v. Led Zeppelin, No. 16-56057, Sept. 28, 2018, 9th Cir.
Some patents specify ranges to account for variability ¬— for example, a range of temperatures in which a process occurs. These types of patents can run into obviousness issues that can invalidate them if the range overlaps with ranges detailed in so-called “prior art.” This article explains why patentees in such cases aren’t totally out of luck, though, as they have the opportunity to rebut the presumption of obviousness.
E.I. DuPont de Nemours & Co. v. Synvina C.V., No. 17-1977, Sept. 17, 2018, Fed. Cir.
E-commerce has allowed foreign corporations to reach new customers far beyond their borders. Sales to U.S. customers, though, might open up a foreign company to litigation in the United States. This article summarizes a decision by the U.S. Court of Appeals for the First Circuit shedding light on how a foreign defendant can land in federal court for alleged trademark infringement.
Plixer Int’l, Inc. v. Scrutinizer GmbH, No. 18-1195, Sept. 13, 2018, 1st Cir.

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We are very pleased about your interest in our company. The protection of your data is especially of major importance for us.
The processing of your personal data is carried out in compliance with the EU General Data Protection Regulation and with the country-specific data protection provisions that are applicable for us. With our privacy statement we would like, among others, to inform you about the collection and storage of personal data, about the type and the purpose of their use, the respectively decisive legal basis for this purpose as well as about the rights to which you are entitled.
This privacy statement may be supplemented or changed in future, for example owing to statutory requirements. Therefore, please inform yourself regularly about the current status. The respective current privacy statement can be called and printed out by you on our website at all times.
Personal data are all information, which refer to an identified or identifiable natural person (hereinafter "data subject"). A natural person will be seen as identifiable, who can be identified directly or indirectly, in particular by means of allocation to an identifier such as a name, to a code number, to location data, to an online identifier or to one or several special features, which are an expression of the physical, physiological, genetic, mental, financial, cultural or social identity of this natural person.
A data subject is each identified or identifiable natural person, whose personal data are processed by the data controller responsible for the processing.
Processing is each activity carried out with or without the help of automated processes or each such series of activities in connection with personal data such as the collection, entry, organisation, classification, the storage, adjustment or change, the reading out, query, use, disclosure by transmission, distribution or any other form of provision, comparison or the linking, limitation, erasure or the destruction.
The limitation to the processing is the marking of stored personal data with the aim of limiting their future processing.
Profiling is each type of automated processing of personal data, which consists of the fact that these personal data are used in order to assess certain personal aspects, which refer to a natural person, in particular in order to analyse or foresee aspects with regard to work performance, financial position, health, personal preferences, interests, reliability, conduct, place of abode or change in location of this natural person.
Pseudonymisation is the processing of personal data in a manner in which the personal data can no longer be allocated to a specific data subject without involving additional information, if this additional information is stored separately and is subject to technical and organisational measures, which guarantee that the personal data is not allocated to an identified or identifiable natural person.
Data controller or person responsible for the processing is the natural person or legal entity, authority, institution or other body, which decides on its own or together with others about the purposes and means of the processing of personal data. If the purposes and means of this processing are stipulated by Union law or the law of the member states then the data controller respectively the certain criteria for his appointment can be envisaged according to Union law or the law of the member states.
The contract data processor is a natural person or legal entity, authority, institution or other body, which processes personal data by order of the data controller.
The recipient is a natural person or legal entity, authority, institution or other body, to which personal data are disclosed, irrespective whether it concerns a third party or not. Authorities, which possibly receive personal data within the scope of a certain investigation order according to Union law or the law of the member states, shall however not be deemed as recipients.
A third party is a natural person or legal entity, authority, institution or other body except the data subject, the data controller, the contract data processor and the persons who, under the direct responsibility of the data controller or the contract data processor, are authorised to process the personal data.
The consent is each expression of intent submitted by the data subject voluntarily for the certain case unmistakably and in an informed manner in the form of a declaration or any other clear confirming act, with which the data subject gives to understand that it agrees with the processing of the personal data relating to him/her.
A breach of the protection of personal data is a breach of the security, which leads to the destruction, to the loss or the change, whether unintended or unlawfully, or to the unauthorised disclosure of respectively to the unauthorised access to personal data, which were transmitted, stored or processed in any other manner.
The legal basis for the data processing is Art. 6 Para. 1 S. 1 lit. f GDPR. Our legitimate interest is derived from the purposes listed above for the data collection. In no way do we use the collected data for the purpose to draw conclusions about your person.
We collect personal data if you provide these to us voluntarily when contacting us per e-mail to info@thueringer-kraeuterhof.de or via our contact form. Which data are collected can be seen from the input form. We use the data communicated by you for processing your enquiries and for processing the contract. After the full processing of your enquiry or after the full processing of the contract or after deletion of your user account your data will be blocked for further use and they will be erased after the expiry of the storage deadlines under tax and commercial law, if you have not explicitly consented to a further use of your data or we reserve a data use beyond this, which is permitted by law and about which we will inform you below.
The data processing for the purpose of contacting us or with the creation of a user account with our company shall be carried out according to Art. 6 Para. 1 S. 1 lit. a GDPR based on your voluntarily granted consent.
The data processing with the conclusion of a contract with us shall be carried out according to Art. 6 Para. 1 S. 1 lit. a GDPR based on your voluntarily granted consent or according to Art. 6 Para. 1 S. 1 lit. b GDPR in order to fulfil the contract.
You can object to the storage and use of your data for these purposes at all times by a message to the contact possibilities stated above under Subclause 1.
The data transmission in the internet (e.g. with the communication per e-mail) can feature security gaps. Information, which you send to us unencrypted per electronic post (e-mail), can be read, stored and used for purposes not as intended by third parties while en route. Therefore, please do not send any confidential information without using an encryption programme.
Your personal data will not be transmitted to third parties for any other purposes than those listed below.
As many other websites we also use "cookies", small text files, which make it possible to store specific information relating to the access device of the user (PC, tablet, smartphone) on the device. They serve, on the one hand, the purpose of user-friendliness of our website and thus for the user, on the other hand however also the statistical entry of the data or the website use and therefore to improve our offer. Several of the cookies used by us will be deleted again after the end of the browser session, thus after closing your browser, so-called session cookies. Other cookies remain on your terminal device and enable us to recognise your browser with the next visit, persistent cookies.
The legal basis for the data processing, i.e. for the use of so-called cookies, is Art. 6 Para. 1 S. 1 lit. f GDPR. Our legitimate interest is derived from our interest in the user-friendliness of our website and in improving our offer.
The information generated by the cookie regarding the use of our offer is stored on the server of the provider in Germany. The IP address is anonymised immediately after the processing.
Matomo supports the "Do Not Track" process of current web browsers. If you want to generally prevent the analysis of your web behaviour we recommend that you activate this option in your browser.
You can receive information relating to data protection of Matomo under: matomo.org/privacy-policy/.
The legal basis for the use of Matomo is Art. 6 Para. 1 S. 1 lit. f GDPR. We have a legitimate interest in the statistical evaluation of the user accesses in order to optimise our web appearance.
We collect and process the personal data of applicants for the purpose of carrying out the application procedure. The processing can also be carried out by using electronic means. This is, in particular, the case if an applicant transmits corresponding application documents to us by using electronic means, for example per e-mail or via a web form located on the website.
If we conclude an employment contract with an applicant, the transmitted data will be stored for the purpose of carrying out the employment relationship by complying with the statutory regulations.
If we do not conclude an employment contract with an applicant the application documents will be deleted automatically 6 months after announcement of the rejection decision, insofar as a deletion does not oppose any other legitimate interests of the data controller responsible for the processing within the meaning of Art. 6 Para. 1 S. 1 lit. f GDPR. Any other legitimate interest in accordance with this regulation is, for example, an obligation to provide proof in proceedings according to the General Equal Treatment Act (AGG).
The legal basis for the processing of your personal data in the application procedure is your consent, Art. 6 Para. 1 lit. a GDPR. The legal basis for the use of your data for the purpose of processing the employment relationship is Art. 6 Para. 1 lit. b GDPR.
pursuant to Art. 77 GDPR irrespective of another legal remedy under administrative law or court legal remedy to lodge a complaint at a supervisory authority, in particular in the member state of your customary place of abode, your workplace or the location of the presumed breach. A list of the supervisory authorities with the respective contact data can be taken from the following link: www.bfdi.bund.de/DE/Infothek/Anschriften_Links/anschriften_links-node.html.
Insofar as your personal data are processed based on legitimate interests pursuant to Art. 6 Para. 1 S. 1 lit. f GDPR, you have the right, pursuant to Art. 21 GDPR, to file an objection against the processing of your personal data, insofar as reasons exist for this purpose, which arise from your special situation or the objection is directed against direct marketing. In the latter case you have a general right to object, which will be implemented by us without stating a special situation.
If you would like to exercise your right of revocation or right to object, an e-mail is sufficient to info@thueringer-kraeuterhof.de.
For reasons of security our website uses an SSL (Secure Socket Layer) encryption. Whether an individual site of our internet presence is transmitted encrypted, you can recognise by the fact that the address line of the browser changes from "http://" to "https://" and by the closed presentation of the key or lock symbol in the status bar of your browser.
We furthermore use suitable technical and organisational security measures in order to protect your data against accidental or wilful manipulations, partial or full loss, destruction or against the unauthorised access of third parties. Our security measures are continuously improved in line with the technological development.

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§ 130-1 Purpose and scope.
§ 130-4 Application for license.
§ 130-5 Application review; performance standards.
§ 130-6 Issuance of license; fee; renewal; display; transferability.
§ 130-7 Revocation and suspension.
§ 130-10 On-call towing list.
§ 130-11 Disposition of towed vehicles.
§ 130-14 Regulations and procedures.
Editor's Note: This ordinance also repealed former Ch. 130, Towing and Storage of Motor Vehicles, adopted 11-28-2001 by Ord. No. 2001-27.
To establish a requirement and procedure for the licensing of individuals and entities providing towing and storage services to the Florence Township Police Department.
This chapter shall apply to all motor vehicle towing and storage operations performed at the request of the Florence Township Police Department.
A private passenger motor vehicle, station wagon or sport-utility-type vehicle that is owned or hired, and is neither used as a public livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pickup body, or delivery sedan, a van, or a panel truck or camper-type vehicle used for recreational purposes owned by an individual, not customarily used in the occupation, profession or business of the owner(s); and solely for the purposes of this chapter, a motorcycle.
The removal and transportation of an automobile from a highway, street or other public or private road, or a parking area, or from a storage facility, and other services normally incident thereto. Basic towing service does not include recovery of vehicles from a position outside the right-of-way or berm, or recovery from resting, impaled upon, adhered or otherwise attached to, any other object within the right-of-way or berm.
Used to tow and recover commercial-type vehicles over 26,000 pounds GVW, as well as passenger vehicles unable to be recovered by other means.
New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, and Christmas Day.
Used to tow and recover small light-duty vehicles up to 10,000 pounds.
Used to tow and recover small commercial-type vehicles up to 26,000 pounds GVW (gross vehicle weight) or passenger vehicles unable to be recovered with a light-duty tow truck or flatbed.
When the tow operator applies his knowledge in a skillful manner to preserve the condition of the motor vehicle while winching and/or lifting the damaged vehicle back to a normal towing or loading position.
Those vehicles equipped with a boom or booms, winches, slings, tilt beds, wheel lifts or under-reach equipment specifically designed by their manufacturer for the removal or transport of motor vehicles, including flatbed vehicles and trailers, employed for the purpose of towing, transporting, conveying and/or removing motor vehicles which are unable to be operated under their own power from one place to another, for which a charge or fee is extracted. All vehicles to be used pursuant to this chapter shall be adequately designed and maintained by the tow operator to transport this disabled vehicle safely and without damage.
Insurance representative or any interested person (excluding vehicle owner or family member trying to retrieve personal belongings) must be accompanied into the secured storage yard facility to inspect, adjust or take photographs of a vehicle or when the tow operator removes a vehicle out of the indoor/outdoor storage area so that it may be towed by another towing company. Documentation such as business card or driver's license must be photocopied and time-stamped when this additional auxiliary service is performed.
Monday through Friday between the hours of 8:00 a.m. and 4:30 p.m.
A Saturday or a Sunday.
Monday through Friday between the hours of 4:30 p.m. and 8:00 a.m.
The process of moving a motor vehicle by use of additional chains, nylon slings and additional lengths of winch cable for a position that is not accessible for direct hook-up by conventional means for towing and/or loading onto a tow vehicle. Winching is not pulling a vehicle onto a flatbed carrier or lifting a motor vehicle by conventional means (tow sling, wheel lift, etc.).
No person shall engage in the business of towing or storing motor vehicles at the direction of the Florence Township Police Department without first obtaining a tow operator's license therefor. Nothing herein shall require licensing for the rendering of road service or for the provision of towing and storage services within the Township other than at the request of the Township Police Department.
The full name and address of the applicant. If the application is made for a corporation, it shall state the names and addresses of the officers and directors thereof, its registered agent, and the names and residential addresses of every stockholder owning more than ten percent of the issued stock.
The address where the tow vehicle or vehicles shall be regularly garaged, the telephone number or numbers and the hours during which service is available at those numbers, and the name, address, and telephone number of an emergency contact for the applicant. In addition, the operator shall maintain, available for inspection by the Township, a list of active drivers containing their names, addresses, New Jersey Driver's License number and Commercial Driver's License number (if applicable).
Inside secured storage: A vehicle storage facility that is completely indoors, having one or more openings in the walls for storage and removal of vehicles, that is secured by a sturdy locking device, and is locked and secure except when open for transport of vehicles in the presence of the tow vehicle operator, suitable for twenty-four-hour, seven-day-per-week storage.
Outside secured storage: A vehicle storage facility that is not indoors and is secured by a fence, walls or other manmade barrier that is at least six feet high, having one or more gates or openings that is secured by a sturdy locking device, and is locked and secure except when open for the transport of vehicles in the presence of the tow vehicle operator, suitable for twenty-four-hour, seven-day-per-week storage. The facility is to be lighted at night so that all vehicles may be plainly visible.
Mixed inside and outside secured storage: A vehicle storage facility having both inside secured storage and outside secured storage as herein defined.
The name and address of the insurance carriers, and the policy numbers of all insurance policies as required by § 130-9 of this chapter.
A copy of the operator's current fee schedule for towing and storage services, separately listing towing and storage fees for automobiles and other motor vehicles.
A certification that the fees and procedures required by this chapter will be paid and followed at all times.
A statement that the Chief of Police or his designee may at any reasonable time conduct an inspection of the tow vehicles or storage facility of any applicant or licensee for the purpose of determining compliance with this chapter.
A certification that neither the applicant nor any tow vehicle operator shall have any criminal convictions for crimes involving fraud, dishonesty, or moral turpitude, or prior motor vehicle infractions related to the towing, licensing, repairing, registration, or titling of motor vehicles or motor vehicle towing operations which might adversely affect public safety or welfare.
An agreement to abide by and accept the terms and conditions of this chapter and the rules and policies adopted pursuant to this chapter.
Satisfactory proof that any and all applicable business and or trade licenses have been obtained.
A statement of hours during which the facility is open and available for the retrieval of vehicles or the transaction of business by members of the public. The hours of business shall be not less than six hours per day weekdays and at least four hours on Saturday.
Such other information as the Township Administrator or Chief of Police may reasonably prescribe.
All applications for tow operator's licenses shall be accompanied by a fee of $100 to cover the Township's costs in processing the application. The fee of $100 shall be a yearly fee which is due to the Township of Florence. All fees are nonrefundable whether or not the license is denied or revoked for any reason.
All licenses are subject to annual review and renewal as set forth in § 130-6(b).
The applicant has the ability to respond to the scene in response to a request for basic towing service within 15 minutes after notification.
The tow trucks and equipment are in safe and sound condition and in compliance with all applicable laws, rules and regulations, capable of transporting disabled vehicles safely and without damage. All applicants must meet minimum standards of operator performance, including but not limited to standards concerning the adequacy of the applicant's equipment and storage facilities and availability.
The applicant owns or has a valid lease to a storage facility within five miles of the Township, in an area legally zoned for such use, and such storage facility shall have a minimum of 10 spaces for passenger automobiles and will be either an inside secured storage, outside secured storage, or mixed inside and outside secured storage facility as defined in § 130-4A(4) above for storage of all vehicles towed or impounded.
The tow operator shall prominently display his license as set forth in § 130-C.
Lacks experience and/or does not have good references from prior customers of the applicant's towing and storage services.
Fails to maintain the facilities, information, or status, to qualify as a tow operator as set forth in § 130-4 for licensing.
Provision of inadequate or insufficient service as set forth in § 130-7A(3).
The Chief of Police shall make his recommendation on the application to the Township Clerk within 60 days of receipt by him. The Township Clerk shall make the final decision regarding all new and/or renewal applications for towing. If the application is disapproved, the reasons therefor shall be set forth in writing. The Township Clerk shall notify the applicant in writing that the application has been granted or denied. If the application is denied, the reasons for such denial shall be set forth in the notice, along with the applicant's right to appeal the denial to Township Council pursuant to § 130-8.
A tow operator's license shall be issued by the Township Clerk to an approved applicant upon provision of insurance certification pursuant to § 130-9. The Township Clerk shall send a copy of the license to the Police Department for filing and shall keep a permanent record of all licenses issued.
All licenses issued under this chapter shall expire at the end of the calendar year in which issued. Applications for renewal, certifying any changes to the original application or certifying no change, shall be filed with the Clerk at least 30 days before expiration, on forms provided by the Clerk. Renewal applications will be forwarded to the Chief of Police for review and any necessary investigation in accordance with the procedures and standards set forth in § 130-5. Results of the Chief of Police's investigation shall be forwarded to the Township Clerk for the Clerk's consideration when reviewing an application. If approved, a renewal license shall be issued upon payment of the license fee and provision of required insurance certifications.
All licenses issued under this chapter are nontransferable.
Failure to comply with any of the requirements of this chapter, any additional regulations promulgated by the Township Council, or any state, federal or local law relating to motor vehicle operation or storage.
Unsatisfactory service which jeopardizes public safety. By way of example and not of limitation, more than three unexcused failures to respond and/or valid complaints (as determined by the Chief of Police after investigation) within a twelve-month period shall be considered prima facia grounds for suspension and/or revocation.
Response to a tow situation without being called pursuant to the rules established by and under this chapter unless a direct call is made to the tow operator by the vehicle owner or operator. In lieu of revocation, the Clerk may drop the offending operator to the bottom of the on-call list for a first offense under this provision.
Notice of suspension and/or revocation shall be in writing and shall include the reasons therefor and notice of the licensee's right to appeal to Township Council pursuant to § 130-8.
License fees shall in all cases be nonrefundable regardless of revocation or suspension of the license.
Any person aggrieved by the action of the Township Clerk in the denial of an application for a license, or in revocation thereof, or in the suspension from the Township's on-call towing list, may appeal to the Township Council by filing with the Clerk, within 14 days after notice of the action complained of has been mailed to such person's last known address, a written request for a hearing, setting forth fully the grounds for the appeal. The Council will set a time and place for a hearing on such appeal, and notice shall be served on or mailed to the applicant or licensee at least five days prior to the hearing. The Council's determination shall be made by resolution and shall become effective immediately, unless otherwise set forth in writing in the resolution.
The Council may, for good cause shown and in its sole discretion, stay a suspension or revocation by the Clerk pending the holding of a hearing pursuant to this section.
Endorsement naming the Township as an additional insured in all insurance policies (except workers' compensation policies) for licensees on the Township's on-call towing list.
All licensees shall hold harmless and indemnify the Township, its officers, employees and agents, from any and all liability claims, losses or damage arising or alleged to arise from the performance of the towing services requested of or rendered by the licensee. The Township shall be named as an additional insured on the tow operators liability policies as set forth in § 130-9A above.
All insurance policies shall be written by insurance companies acceptable to the Township and authorized to do business in the State of New Jersey with a best rating of not less than AAA.
No license shall be issued or renewed until the applicant has filed with the Township Clerk certificates of insurance evidencing the insurance coverage and endorsements required in § 130-9A. All certificates must provide for 30 days' prior written notice to the Township of policy cancellation or material change.
Any license issued under this chapter will be automatically revoked upon expiration or cancellation of the required insurance, or material change in coverage which renders that coverage not in compliance with the requirements of § 130-9A.
The Chief of Police shall maintain a list of those tow operators licensed by the Township to respond to calls from the Township Police Department. In order to be included on the on-call towing list, an applicant must meet all of the requirements of this chapter and shall enter into an agreement with the Township for a term of one year, said agreement to be prepared by the Township Attorney.
Calls to tow operators on the on-call list shall be made on a nondiscriminatory rotating basis, pursuant to procedures established by the Chief of Police. Nothing herein shall prohibit the Chief of Police or his designee from calling a tow operator out of sequence or seeking the services of a tow operator not on the on-call list if the circumstances require specialized equipment or if the interests of public safety so require. If the tow operator selected does not respond to the scene within the 15 minutes after notification, the Chief of Police or his designee shall be permitted to summon the next available tow operator. When any unusual situation occurs which may be dangerous to the safety of the public, such as a spill of toxic material or other dangerous cargo, the Township Police Department may select any qualified tow operator.
The fees to be charged for the towing and storage services of automobiles shall be as set forth in § 130-11. The Township shall not be liable for the cost of any towing and/or storage services unless those services are performed on a municipal vehicle. This means, by way of example and not limitation, if a tow operator is called to provide a service and the owner is able to get his/her vehicle started and operating in the interim, then neither the Township nor the owner shall be responsible for the tow operator's costs. Further, the tow operator will not lose his position on the towing list.
Inclusion on the on-call towing list shall be automatically revoked upon expiration or revocation of the tow operator's license. The Township Council may also suspend a licensed tow operator's inclusion on the on-call towing list for such period of time as they consider appropriate for violations of this chapter, after a hearing on such violations. Suspensions may be appealed pursuant to the procedures set forth in § 130-8.
Vehicles that are being towed and held by the Florence Township Police Department shall not be released until the owner or his/her agent provides a release form from the Police Department.
All vehicles towed at the request of the Township Police Department must be stored together at the approved storage facility and not scattered throughout the premises.
No tow operator shall dispose of, destroy, remove, sell or otherwise transfer any vehicle towed at the request of the Township Police Department without first complying with all applicable laws of the State of New Jersey and notifying the Township Police Department of its intention to do so in writing at least 14 days prior to effectuating same.
Upon request by the Township Police Department, the tow operator shall store a motor vehicle in an inside building as defined in § 130-4A(4). Vehicles designated by the police as being suspected as being used in criminal activity shall be stored in a separate space for the exclusive use of the Police Department, and shall not be released without the written permission of the Chief of Police, Acting Chief of Police or his designee.
In addition to any requirements set forth elsewhere in this chapter, all approved towing services must provide in writing an employment nondiscrimination statement prior to the issuance of said approval, and must agree to comply with all state and federal laws and regulations concerning wages, hours and terms of employment.
Tow operators shall advise members of the public with complaints regarding their services rendered pursuant to this chapter or their right to file a complaint with the Township Clerk. The Township Clerk shall evaluate all such written complaints in determining whether action is required under § 130-7. Tow operators shall maintain a detailed list of all complaints received for inspection by the Township which shall include, at least, the name and address of the complaining party; the date, time, and place of the tow; the nature of the complaint, and the disposition of the complaint.
No person shall be liable to any tow operator who tows or stores an automobile, including but not limited to any automobile that was damaged in an accident or recovered after being reported stolen, for any fees in excess of the following.
All weights shall be based upon the manufacturer's stated gross vehicle weight.
Day rates shall apply between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday. The night/weekend/holiday rate shall apply from 4:30 p.m. to 8:00 a.m., Monday through Friday, and for the entire twenty-four-hour day on weekends and holidays. All rates shall be based upon the time of the call to the tow operator.
Storage fees are for each twenty-four-hour day or portion thereof. A new day commences at 12:01 a.m.
Basic towing service fees are maximum rates for up to one hour of service at the scene, and include mileage for the first five miles of tow. Each additional mile shall be at the rate of $2 per mile or portion of a mile.
The tow operator shall submit annually, as part of its application or renewal thereof, its fee schedule for the towing and storage of automobiles, which shall be subject to the review and approval of the Township Council Clerk.
If a tow operator impounds a vehicle from a public street, right-of-way or other location at the direct request of the Florence Township Police Department, the basic fee for towing and storage shall be as noted above.
For all motor vehicles other than those set forth above, the tow operator shall set reasonable and customary fees for the Burlington County area for the towing and storage of such vehicles. The tow operator shall submit annually, as part of its application or renewal thereof, its fee schedule for the towing and storage of all motor vehicles other than automobiles, which shall be subject to the review and approval of the Township Clerk.
A current fee schedule shall be submitted for approval on an annual basis at the time of application for license renewal.
When basic towing services are rendered for any automobile, there shall be no additional charges other than those provided for in Subsection B above, including but not limited to flatbedding, waiting time, winching, cleanup costs and additional labor.
`Prior to hookup or flatbedding of a motor vehicle, the tow operator shall present a copy of its fee schedule to the owner or operator of the vehicle. The fee schedule shall also contain the name, address and telephone number of the tow operator and a statement of the hours when and location where the motor vehicle may be claimed.
The Township Council shall promulgate such rules, regulations and procedures, not inconsistent with this chapter, as may be reasonable and necessary to carry out the provisions of this chapter. Copies thereof shall be provided to all licensed tow operators and shall be made available to the public, along with copies of current fee schedules, during normal business hours. Failure to comply with applicable rules, regulations and procedures may be cause for revocation of a tow operator's license.


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This guide illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.
The University of Michigan Library Copyright Office provides help with copyright questions for University of Michigan faculty, staff and students. Please email us with questions or visit our website for more information.
The information presented here is intended for informational purposes and should not be construed as legal advice. If you have specific legal questions pertaining to the University of Michigan, please contact the Office of the General Counsel.
If you require legal advice in your personal capacity, the lawyer referral services operated by the Washtenaw County Bar Association and the State Bar of Michigan may be helpful to you.
Welcome to the Substantial Similarity guide from the University of Michigan Library Copyright Office.
This guide focuses on the copyright doctrine of substantial similarity. Substantial similarity is a level of similarity that shows improper appropriation of the plaintiff’s work, one of the requirements for a prima facie infringement claim. If the similarity of the defendant’s work to protectable elements in the plaintiff’s work is minimal, or if similarity only exists with regard to unprotectable elements of the work, then there is no substantial similarity. For an introduction to copyright, please see our guide to Copyright Basics.
Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001).
Burroughs v. Metro-Goldwyn-Mayer, 683 F.2d 610 (2d Cir. 1982).
Computer Associates International, Inc. v. Altai Inc., 982 F.2d 693 (2d Cir. 1992).
Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57 (2d Cir. 2010).
Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977).
Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010).
Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960).
Vincent Peters v. Kanye West, et al., 692 F.3d 629 (7th Cir. 2012).
Reyher v. Children's Television Workshop, 429 U.S. 980 (2d Cir. 1976).
Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003).
Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014).
The case summaries and glossary were initially written by research assistant Yuanxiao Xu. Quotes within the summaries are from the case summarized, unless otherwise noted. This guide was last revised on February 9, 2018.
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What Is An Expungement In Oklahoma?
There are two types of expungements in Oklahoma. They are known as § 18 and § 991c expungements. They refer to sections of Title 22 of the Oklahoma Statutes. Under both sections, some part of a person’s public record is removed from the public view. Neither expungement changes what law enforcement can see.
This type of expungement seals records, including an arrest, to everyone except law enforcement. It’s Oklahoma’s most comprehensive expungement. It is defined in 22 O.S. § 18 as the sealing of criminal records, as well as any civil public record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction, or occurrence.
The § 991c expungement removes some information from the public record but not as much as the § 18 expungement. Since it is a smaller version of the § 18 expungement, I call it “Expungement Lite”. This is because the § 991c expungement does not affect the arrest record. However, it does remove and change some public information about a case. A § 991c expungement only applies to deferred sentences that have been dismissed.
When a case is expunged under a § 991c expungement, the court clerk will remove the records of that case from public view. This means that nobody will be able to view the record online on OSCN anymore. Additionally, when the paperwork is processed through the OSBI, their records will be changed to reflect a not-guilty plea and the dismissal of the case.
In Oklahoma, having a record expunged is synonymous with having a record sealed. When a record is expunged, the record is sealed to everyone except law enforcement. It’s best to think of an Oklahoma expungement under either the § 991c or §18 expungements as a sealing of records.
A big misconception about having a record expunged is that the expungement is automatic. Many people believe that their case was expunged after their deferred sentence ended. That is not necessarily true. Sometimes the § 991c expungement is automatic; other times it is not. The 991c paperwork still must be processed both by somebody in the court and through the OSBI. While the processing of a § 991c expungement with the court clerk’s office may be automatic, the processing through OSBI is not automatic. Even if the case information was taken off the internet, the order of dismissal most likely did not get sent to the OSBI. It is very possible that the criminal record of somebody whose case was “expunged” via § 991c still shows that they pleaded guilty or have a pending case, even though they can’t find their case on OSCN anymore.
A second misconception that people have is that law enforcement can’t see their records. Remember that an expungement in Oklahoma should be thought of as a sealing of records to everybody other than law enforcement. Other states may have more thorough expungements, which is a reason why people may believe that Oklahoma’s expungements completely erase one’s record.
Even if a case has been dismissed, expunged through the § 991c process, and expunged using the Section 18 arrest record expungement, then law enforcement will still be able to see the arrest. The people who won’t be able to see the arrest would be civilians doing a background check.
The OSBI doesn’t maintain juvenile criminal history information unless the juvenile is certified as an adult by the court.
What Type Of Records Cannot Be Expunged?
Violent felonies generally cannot be expunged. If you were convicted or charged with a felony that is not an 85% crime, then you may qualify for expungement only if you get a pardon from the governor first. Someone sentenced to prison upon conviction of an 85% crime must serve at least 85% of their sentence.
Fingerprint cards will not be destroyed when an expungement is granted. Expungements do not allow the destruction of physical records. Identifying information, including fingerprints, may still be maintained by the OSBI; however, that type of identifying information will not reference or be attached to the sealed arrest information. Private sector records, such as newspaper articles, will not be expunged; those will still be available for the public to view.
Law enforcement will always be able to see your record, even after both a § 991c and a § 18 arrest expungement. Any charges, arrests, or convictions that are not eligible for expungement will still appear on your record.
Traffic offenses on a person’s driving history cannot be expunged. They are automatically removed from the driving record after three years.
According to 22 O.S. § 19, the physical destruction of criminal justice records is not authorized. Materials that are recorded in the same document as unsealed material may be recorded in a separate document and sealed, then obliterated in the original document.
The sealing of records does not prohibit the introduction of evidence regarding actions sealed pursuant to 22 O.S. § 19 at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to 12 O.S. § 2608.
For more information on Having A Record Expunged In Oklahoma, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 633-3420 today.