In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...
, incorporation by reference is the act of including a second
document
A document is a writing, written, drawing, drawn, presented, or memorialized representation of thought, often the manifestation of nonfiction, non-fictional, as well as fictional, content. The word originates from the Latin ', which denotes ...
within another document by only mentioning the second document. This act, if completed properly, makes the entire second document a part of the main document. Incorporation by reference is often found in laws, regulations, contracts, legal and regulated documentation.
Administrative law in the United States
In American
administrative law
Administrative law is a division of law governing the activities of government agency, executive branch agencies of government. Administrative law includes executive branch rulemaking (executive branch rules are generally referred to as "regul ...
, incorporation by reference is a drafting tool that enables federal agencies to give legal effect to materials that are already published elsewhere. This is allowed under a provision of
the Freedom of Information Act, 5 U.S.C. § 552(a)(1). Section 552(a) requires agencies to publish regulations in the
Federal Register
The ''Federal Register'' (FR or sometimes Fed. Reg.) is the government gazette, official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every wee ...
in order to enforce them. Section 552(a)(1) provides that if material published elsewhere is "reasonably available to the class of persons affected" and the Director of the Federal Register approves its incorporation by reference, that material will be "deemed published" in the Federal Register. It is most controversially used to incorporate privately authored voluntary consensus standards into health and safety regulations without infringing the standards developers'
copyright
A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...
. Federal law and policy, embodied in the
National Technology Transfer and Advancement Act of 1995 and
Office of Management and Budget
The Office of Management and Budget (OMB) is the largest office within the Executive Office of the President of the United States (EOP). The office's most prominent function is to produce the president's budget, while it also examines agency pro ...
(OMB) Circular A-119, requires federal agencies to use these standards instead of creating "government-unique" technical standards purely to serve regulatory purposes.
Contracts
Commercial contracts may refer to separate documents which are incorporated into the primary contract by reference to them. Examples include documents containing standard terms and conditions, or references to previous contracts between the two parties, whose terms are to apply to a further transaction.
Patents
In some countries, a specification of a
patent application may incorporate by reference the content of a previous
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...
, patent application, or non-patent publication. The information incorporated by reference is treated as part of the text of the application as filed.
MPEP § 2163.07(b) Incorporation by Reference
Wills
In law regarding wills, it is a doctrine at common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
which allows a testator, or a creator of a will, to dispose of assets in his estate in accordance with a separate document. To be valid, such a document must comply with the following requirements:
# it must have existed at the time the will was executed;
# the will must describe the document with particularity, so that it may be identified; and
# the will must clearly manifest the intent that the document be incorporated.
An exception to the first requirement is made for small gifts of tangible personal property
Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law (legal system), civil law systems, personal property is often called movable property or movables—a ...
, such as household furniture and items of sentimental value.
Oral instructions cannot be subject to incorporation by reference. For example, if a testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. ...
states in the will that he has recited to a third party the intended disposition of testamentary assets, such attempt to circumvent the requirements of a written will is void.
See also
* Outline of organizational theory
References
{{reflist
Patent law
Statutory law
Wills and trusts
Contract law