Extinguishment
Encyclopedia
Extinguishment is the destruction of a right
or contract
. If the subject of the contract is destroyed (such as through merging the contract subject and the contract obligation), then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts (common, copyhold), debts, rents, and right of ways
. A right may be extinguished by nullifing that right or, in the case of a debt, discharged by payment in full or through settlement.
An extinguishment may be by matter of fact
and by matter of law
. If a creditor
receives satisfaction and full payment of a debt and the creditor releases the debtor, then that is express extinguishment by matter of fact. If a person is renting land and subsequently becomes the owner of that same land by purchase or descent, the rent is extinguished through implied extinguishment by matter of fact.
There are numerous situations where a claim is extinguished by operation of law
. If two persons are jointly but not severally liable for a simple contract debt, a judgment at common law
obtained against only one of the debtors works as an extinguishment of the claim on the other debtor as a matter of law. A conveyance of mortgaged land by the mortgagor to the mortgagee extinguishes the mortgage. However taking a promissory note
for the amount due on the mortgage does not deprive the mortgage holder of a right to a lien
, but merely suspends its enforcement until the note is payable.
(a common), in England and Wales and the United States, is a piece of land owned by one person, but over which other people can exercise certain traditional rights, such as allowing their livestock to graze upon it. If the owner of the common right becomes the owner of the fee simple estate
, then the common right becomes extinguished. If the crop or other item over which there is a common right is severed from the land, then the common right becomes extinguished. Other situations in which the common right becomes extinguished include legal release
and approvement (improvement of common lands, by inclosing and converting them to the uses of husbandry for the advantage of the lord of the manor.)
was a parcel of land tenure
granted to a peasant by the lord of the manor in return for services, such as agricultural services. Such grants/servitude was not always in the best interest of the peasant and the copyhold could be extinguished by an act of the tenant showing an intention not to hold the land any longer. Copyholds may be extinguished by the union of the copyhold and the freehold
in the same person. Copyholds were gradually enfranchised (turned into ordinary holdings of land—either freehold or 999-year leasehold) during the 19th century. Legislation in the 1920s finally extinguished the last of them.
given to secure the payment of a bond is not extinguished by a judgment on the bond since the original debt does not merged by the trust deed. A debt evidenced by a note may be extinguished by a surrender
of the note
, a ground rent
(rent of unimproved land) is extinguished by a conveyance from the ground rent owner to the tenant.
include the right to use the land of another for a special purpose, such as a passageway. If the owner of the right of way purchases the close over which the right of way lies, the right of way is extinguished.
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
or contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
. If the subject of the contract is destroyed (such as through merging the contract subject and the contract obligation), then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts (common, copyhold), debts, rents, and right of ways
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
. A right may be extinguished by nullifing that right or, in the case of a debt, discharged by payment in full or through settlement.
An extinguishment may be by matter of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
and by matter of law
Judgment as a matter of law
Judgment as a matter of law is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is also known as a directed verdict, which it has replaced in American Federal courts.JMOL is similar to judgment on the pleadings and...
. If a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
receives satisfaction and full payment of a debt and the creditor releases the debtor, then that is express extinguishment by matter of fact. If a person is renting land and subsequently becomes the owner of that same land by purchase or descent, the rent is extinguished through implied extinguishment by matter of fact.
There are numerous situations where a claim is extinguished by operation of law
Operation of law
The phrase "by operation of law" is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his heirs are determined by operation...
. If two persons are jointly but not severally liable for a simple contract debt, a judgment at 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...
obtained against only one of the debtors works as an extinguishment of the claim on the other debtor as a matter of law. A conveyance of mortgaged land by the mortgagor to the mortgagee extinguishes the mortgage. However taking a promissory note
Promissory note
A promissory note is a negotiable instrument, wherein one party makes an unconditional promise in writing to pay a determinate sum of money to the other , either at a fixed or determinable future time or on demand of the payee, under specific terms.Referred to as a note payable in accounting, or...
for the amount due on the mortgage does not deprive the mortgage holder of a right to a lien
Lien
In law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
, but merely suspends its enforcement until the note is payable.
Extinguishment of common
Common landCommon land
Common land is land owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel...
(a common), in England and Wales and the United States, is a piece of land owned by one person, but over which other people can exercise certain traditional rights, such as allowing their livestock to graze upon it. If the owner of the common right becomes the owner of the fee simple estate
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
, then the common right becomes extinguished. If the crop or other item over which there is a common right is severed from the land, then the common right becomes extinguished. Other situations in which the common right becomes extinguished include legal release
Legal release
A legal release is a legal instrument that acts to terminate any legal liability between the releasor and the releasee, signed by the releasor. A release may also be made orally in some circumstances...
and approvement (improvement of common lands, by inclosing and converting them to the uses of husbandry for the advantage of the lord of the manor.)
Extinguishment of copyhold
A copyholdCopyhold
At its origin in medieval England, copyhold tenure was tenure of land according to the custom of the manor, the "title deeds" being a copy of the record of the manorial court....
was a parcel of land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
granted to a peasant by the lord of the manor in return for services, such as agricultural services. Such grants/servitude was not always in the best interest of the peasant and the copyhold could be extinguished by an act of the tenant showing an intention not to hold the land any longer. Copyholds may be extinguished by the union of the copyhold and the freehold
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
in the same person. Copyholds were gradually enfranchised (turned into ordinary holdings of land—either freehold or 999-year leasehold) during the 19th century. Legislation in the 1920s finally extinguished the last of them.
Extinguishment of a debt
Debts may be extinguished by the creditor accepting a higher security. If the creditor recovers a judgment, the original debt is extinguished. However, a trust deedTrust deed (real estate)
In real estate in the United States, a trust deed or deed of trust is a deed wherein legal title in real property is transferred to a trustee, which holds it as security for a loan between a borrower and lender...
given to secure the payment of a bond is not extinguished by a judgment on the bond since the original debt does not merged by the trust deed. A debt evidenced by a note may be extinguished by a surrender
Surrender (law)
In common law surrender is the term describing a situation where a tenant gives up possession of property held under a tenancy as a result of which the tenancy ends....
of the note
Extinguishment of rent
A union of the title to the lands and the rent in the same person will extinguish the rent. In PennsylvaniaPennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, a ground rent
Ground rent
Ground rent, sometimes known as a rentcharge, is a regular payment required under a lease from the owner of leasehold property, payable to the freeholder. A ground rent is created when a freehold piece of land or a building is sold on a long lease...
(rent of unimproved land) is extinguished by a conveyance from the ground rent owner to the tenant.
Extinguishment of ways
Right of waysEasement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
include the right to use the land of another for a special purpose, such as a passageway. If the owner of the right of way purchases the close over which the right of way lies, the right of way is extinguished.