Idem sonans
Encyclopedia
Idem sonans is a legal doctrine whereby a person's identity
is presumed known despite the misspelling of his or her name. The presumption lies in the similarity between the Phonology
, or sounds of the correct name and the name as written. Such similar-sounding words are called a homonym
, while similar-sounding phrases or names would be a holorime
.
In Latin it roughly means "Sounding the same" or "Same Item." Some examples are Seagrave/Segrave, Hutson/Hudson, Coonrad/Conrad, Keen/Keene, and Diadema/Deadema.
, there has been an incredibly small amount of judicial activity here. The old judgment
of R v Davis provides:
The modern case
of Re Vidiofusion Ltd establishes a four stage test when a name of a company
is spelled differently in writing:
. Name changes can mislead searchers of official records of titles or liens. Article 9 of the UCC states that a financing statement shall not perfect
a valid security interest
if a name change would be "seriously misleading.". A creditor may gain priority over other creditors in the event of a bankruptcy
by filing a financing statement. The financing statement contains information relevant to the secured transaction and puts other creditors on notice that the filer has a secured interest in the property. Should the filer use a debtor name that is substantially different from the debtor's actual name, the purpose of filing the financing statement is defeated. On the other hand, if there is a minor difference in spelling or an idem sonans, the error is not fatal, but only if it is not seriously misleading. The actual search results may reveal a debtor with a similar name and address which would put the researcher on notice to investigate further, which is the purpose of the filing in the first place. The legal effect of an idem sonans is that the minor name difference shall have no bearing on the priority of debtors.
There is some movement away from this doctrine under modern New York
Common law
, especially in Conveyancing
. That means that a creditor
filing a judgment lien
or a title abstract company searching title to real property
by a deed
filed in an office of a county clerk must search by exact name, and can not rely on idem sonans.
California
is also showing movement from this common law doctrine in transfer of property. The court held that for the "purposes of identification" the doctrine applies, but refused to allow it in the transfer of real property. New Hampshire
Supreme Court in 1994 took a stance on this doctrine and said "We concur with the court in Orr that "the simple alternative is to require [attachment creditors] simply to spell the names of their ... debtors properly.""
Identity (social science)
Identity is a term used to describe a person's conception and expression of their individuality or group affiliations . The term is used more specifically in psychology and sociology, and is given a great deal of attention in social psychology...
is presumed known despite the misspelling of his or her name. The presumption lies in the similarity between the Phonology
Phonology
Phonology is, broadly speaking, the subdiscipline of linguistics concerned with the sounds of language. That is, it is the systematic use of sound to encode meaning in any spoken human language, or the field of linguistics studying this use...
, or sounds of the correct name and the name as written. Such similar-sounding words are called a homonym
Homonym
In linguistics, a homonym is, in the strict sense, one of a group of words that often but not necessarily share the same spelling and the same pronunciation but have different meanings...
, while similar-sounding phrases or names would be a holorime
Holorime
Holorime is a form of rhyme in which the rhyme encompasses an entire line or phrase. A holorime may be a couplet or short poem made up entirely of homophonous verses.-Holorime in English:...
.
In Latin it roughly means "Sounding the same" or "Same Item." Some examples are Seagrave/Segrave, Hutson/Hudson, Coonrad/Conrad, Keen/Keene, and Diadema/Deadema.
United Kingdom
Under UK jurisdictionJurisdiction
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...
, there has been an incredibly small amount of judicial activity here. The old judgment
Judgment
A judgment , in a legal context, is synonymous with the formal decision made by a court following a lawsuit. At the same time the court may also make a range of court orders, such as imposing a sentence upon a guilty defendant in a criminal matter, or providing a remedy for the plaintiff in a civil...
of R v Davis provides:
- "If two names spelt differently necessarily sound alike, the court may, as matter of law, pronounce them to be idem sonantia; but if they do not necessarily sound alike, the question whether they are idem sonantia is a question of fact for the jury".
The modern case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
of Re Vidiofusion Ltd establishes a four stage test when a name of a company
Company
A company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
is spelled differently in writing:
- No CompanyCompanyA company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
of a similar name - Idem Sonantia - similar pronuniciation
- No marked vision difference (judgeJudgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
gave example of Jackson/Jaxon being too dissimilar visually) - Misspelling does not substantially change the placement of the name if placed in a alphabetical list.
United States
Remnants of this common law doctrine exist today in the United States in the Uniform Commercial CodeUniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...
. Name changes can mislead searchers of official records of titles or liens. Article 9 of the UCC states that a financing statement shall not perfect
Perfection (law)
In law, perfection relates to the additional steps required to be taken in relation to a security interest in order to make it effective against third parties and/or to retain its effectiveness in the event of default by the grantor of the security interest...
a valid security interest
Security interest
A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets...
if a name change would be "seriously misleading.". A creditor may gain priority over other creditors in the event of a bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
by filing a financing statement. The financing statement contains information relevant to the secured transaction and puts other creditors on notice that the filer has a secured interest in the property. Should the filer use a debtor name that is substantially different from the debtor's actual name, the purpose of filing the financing statement is defeated. On the other hand, if there is a minor difference in spelling or an idem sonans, the error is not fatal, but only if it is not seriously misleading. The actual search results may reveal a debtor with a similar name and address which would put the researcher on notice to investigate further, which is the purpose of the filing in the first place. The legal effect of an idem sonans is that the minor name difference shall have no bearing on the priority of debtors.
There is some movement away from this doctrine under modern New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
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...
, especially in Conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
. That means that 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...
filing a judgment 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...
or a title abstract company searching title to real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
by a deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
filed in an office of a county clerk must search by exact name, and can not rely on idem sonans.
California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
is also showing movement from this common law doctrine in transfer of property. The court held that for the "purposes of identification" the doctrine applies, but refused to allow it in the transfer of real property. New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
Supreme Court in 1994 took a stance on this doctrine and said "We concur with the court in Orr that "the simple alternative is to require [attachment creditors] simply to spell the names of their ... debtors properly.""
See also
- Identification (disambiguation)
- Notary publicNotary publicA notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
- Acknowledgement
- AffirmationAffirmation in lawIn law, an affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath. An affirmation has exactly the same legal effect as an oath, but is usually taken to avoid the religious implications of an oath...
- GenealogyGenealogyGenealogy is the study of families and the tracing of their lineages and history. Genealogists use oral traditions, historical records, genetic analysis, and other records to obtain information about a family and to demonstrate kinship and pedigrees of its members...
- Real propertyReal propertyIn English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
- Title searchTitle searchA title search is a process that is performed primarily to determine the answer to three questions:*Does the seller have a saleable interest in the property?...