Constructive notice
Encyclopedia
Constructive notice also known as the Doctrine of Constructive Notice is a legal fiction
used in the law
of both common law
and civil law
systems to signify that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it.
with the federal government of the United States
is that the registration gives nationwide constructive notice that the trademark is owned by the registrant. Therefore, if another entity uses the mark, they will be treated as though they knew their use of it was a trademark infringement
, even if they had no actual knowledge of the registration, or the registrant's use of the mark.
legal system can be used to impose liability for negligence
in tort
actions against landholder defendants. When there is no actual notice to a defendant of a hazardous condition, there may nevertheless be constructive notice. If the defendant would have been aware of the condition by being reasonably attentive, the defendant has constructive notice.
. Where a plaintiff
files a lawsuit
, but is unable to effect service of process
on the defendant
because the defendant is in hiding, or their whereabouts are unknown, most states permit the plaintiff to give constructive notice by either posting an announcement of the suit on property
known to be owned by the defendant, or by publishing the notice in a local newspaper
. Even if the defendant never sees the notice (or, at least, if it can not be proven that the defendant saw it), the court
will go forward with the case as though the defendant was fully aware of the proceedings. In such a case, however, the defendant can later challenge the jurisdiction
of the court to hear the case, at which time the plaintiff usually has to prove that he tried to effect service of process by other means, and was unable to do so. A "lis pendens" notice is a document filed in the public records which, according to the laws of many states, provides constructive notice of pending litigation which could affect title to the property.
Various forms of constructive notice have been challenged in the United States Supreme Court as violating due process. While the Court has generally upheld such practices, there have been some exceptions to this in which the court has held that notice must be reasonably calculated to reach known parties to a proceeding.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
used in the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of both common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems to signify that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it.
Intellectual property
For example, one benefit of registering a trademarkTrademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
with the federal government of the United States
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
is that the registration gives nationwide constructive notice that the trademark is owned by the registrant. Therefore, if another entity uses the mark, they will be treated as though they knew their use of it was a trademark infringement
Trademark infringement
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees...
, even if they had no actual knowledge of the registration, or the registrant's use of the mark.
Real property
One of the most common examples of constructive notice is in the operation of the real estate recording laws. One of the purposes of these is to impart constructive notice of the contents of documents affecting the title that are recorded in the recorder's offices in the jurisdictions where the real estate lies.In tort
Constructive notice in the AmericanUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal system can be used to impose liability for negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
actions against landholder defendants. When there is no actual notice to a defendant of a hazardous condition, there may nevertheless be constructive notice. If the defendant would have been aware of the condition by being reasonably attentive, the defendant has constructive notice.
Service of process
Another common example of constructive notice is found in the law of civil procedureCivil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
. Where a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
files a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
, but is unable to effect service of process
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
on the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
because the defendant is in hiding, or their whereabouts are unknown, most states permit the plaintiff to give constructive notice by either posting an announcement of the suit on property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
known to be owned by the defendant, or by publishing the notice in a local newspaper
Newspaper
A newspaper is a scheduled publication containing news of current events, informative articles, diverse features and advertising. It usually is printed on relatively inexpensive, low-grade paper such as newsprint. By 2007, there were 6580 daily newspapers in the world selling 395 million copies a...
. Even if the defendant never sees the notice (or, at least, if it can not be proven that the defendant saw it), the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
will go forward with the case as though the defendant was fully aware of the proceedings. In such a case, however, the defendant can later challenge the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
of the court to hear the case, at which time the plaintiff usually has to prove that he tried to effect service of process by other means, and was unable to do so. A "lis pendens" notice is a document filed in the public records which, according to the laws of many states, provides constructive notice of pending litigation which could affect title to the property.
Various forms of constructive notice have been challenged in the United States Supreme Court as violating due process. While the Court has generally upheld such practices, there have been some exceptions to this in which the court has held that notice must be reasonably calculated to reach known parties to a proceeding.