Also known as: in-kind · payment in kind · distribution in kind
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A method of satisfying an obligation or dividing property by delivering goods, services, or assets themselves rather than their monetary equivalent. This form is permitted only when the items are fungible or when the governing rule expressly authorizes noncash satisfaction.
A method of satisfying an obligation or dividing property by delivering goods, services, or assets themselves rather than their monetary equivalent. This form is permitted only when the items are fungible or when the governing rule expressly authorizes noncash satisfaction.
Renee and Katie own a converted warehouse as tenants in common subject to zoning that bars subdivision below a minimum floor-area ratio. Renee requests physical division into separate parcels. The court orders partition by sale instead because any physical split would produce parcels too small to satisfy zoning and therefore unusable for film production.
A distinction in character or type rather than merely in degree or amount. Conduct, harm, or relief that differs in kind falls outside the scope of authorization, consent, or prior demand.
Harry, a site foreman for Elm Framing, returned after hours with the company skid-steer loader to help his cousin move personal debris. He backed the machine into a neighbor's car. The conduct occurred far outside working hours and served only a personal purpose. Elm Framing therefore faces no vicarious liability because the activity was different in kind from Harry's authorized duties.
A distinction in character or type rather than merely in degree or amount. Conduct, harm, or relief that differs in kind falls outside the scope of authorization, consent, or prior demand.
Each sense below has its own examples, sources, and questions.
Ironwood Capital holds a portfolio of unique artwork and cash. When distributing to partners, the firm proposes giving each partner a pro-rata share of specific paintings. The partners may not demand or receive the artwork because partnership assets may be distributed in kind only when every part is fungible with every other part.
Island Manufacturing dissolves and must wind up its affairs. It sells equipment that cannot practicably be divided among shareholders. The corporation properly disposes of the properties rather than attempting an in-kind distribution that the statute does not permit for non-fungible assets.
A partnership may distribute an asset in kind only if each part of the asset is fungible with every other part and each partner receives a percentage equal in value to the partner's share. Partners have no right to demand or receive any distribution in a form other than money.
Partition in kind is preferred, but a court may order sale when physical characteristics of the land or external legal constraints such as zoning make a fair physical division impossible or would render resulting parcels unusable.
Elle sued West Counsel for malpractice and sought only the lost $200,000 settlement in her complaint. After default, she requested an additional permanent injunction requiring client notifications. The clerk may enter judgment only for the $200,000 because the injunction differs in kind from the monetary relief demanded in the pleadings.
The Hog Farm Partnership's spraying created odors and flies that crossed a public highway and reached a lake recreation area. Cassandra, owner of the sole fishing-gear shop on the access road, lost nearly all seasonal revenue. Her economic injury differs in kind from the general public's recreational inconvenience and therefore supports an individual damages action for public nuisance.
A default judgment must not differ in kind from or exceed in amount the relief demanded in the pleadings. The clerk may therefore enter judgment only for a sum certain that appears on the face of the complaint.
Conduct is outside the scope of employment if it is different in kind from that authorized, occurs far beyond authorized time or space limits, or is too little actuated by a purpose to serve the master. An employer therefore escapes liability when an employee uses company equipment after hours for purely personal tasks.
A plaintiff may recover damages for public nuisance only upon showing harm different in kind from that suffered by the general public. Purely economic loss unique to a business located on the sole access road satisfies this requirement.
…at 193, 519 F. 2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes , 414 U. S. 51 (1973), with Rosario v. Rockefeller , 410 U. S. 752 (1973). (c) Apart from these First Amendment concerns, appellants argue that the…