In law, a termination or diminishment. Commonly used to refer to a reduction of something owed by the person to whom it is owed. A landlord might grant abatement in rent by reducing the amount owed. Estate law may use the term more specifically. When an estate is settled, debts must be paid off before any willed property can be distributed. If property has to be sold to pay off the deceased’s debts, it cannot then be gifted to the beneficiary. It is then said to “abate”. The gift has been terminated or diminished before it could be given. See also “ademption”.
To carry a person away by force or fraud. This term applies only to a person – a thing cannot be abducted. See also “kidnapping”.
To aid, encourage or incite another to do wrong. “Aiding and abetting” is a crime in many countries.
A Latin term meaning “from the beginning”.
A clause in a contract that allows the terms of the contract to become fully due immediately if a payment is missed, or some other default in the debtor’s obligation occurs (such as the debtor becoming insolvent).
In law, acceptance is an express or implied act that accepts the terms and obligations of a contract or agreement. It is one of three requisites to a valid contract under common law (the other two being an offer and consideration). No contract can exist until it is accepted, but the contract begins at the moment of acceptance. See also “acquiescence”.
Accord and Satisfaction
To quote from the case of British Russian Gazette & Trade Outlook Ltd. v. Associated Newspapers Ltd. (1933) 2 K.B. 616: “Accord and satisfaction is the purchase of a release from an obligation arising under contract or tort by means of any valuable consideration, not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative.” An example of this would be to buy out the contract of an employee, rather than insisting the contract be fulfilled. In this example, the accord would be the agreement that the employee leave and not pursue legal action against the employer, and the satisfaction would be the money paid to buy out the contract.
The addition to land by the gradual addition of soil. This can happen by erosion washing soil onto an area; by flooding doing the same; or by a permanent retreat of water from land. A similar term is avulsion, but this refers more to a sudden transference rather than a gradual one.
To consent or agree without action or protest. Inaction can bind a person legally just as direct action can. Implied recognition of the terms of a contract can be as binding as direct acceptance of that contract. For instance, if one reads a magazine at a magazine stand and tears out a page or coupon, one is obligated to pay for the magazine since that is an implied acceptance of the magazine. Acquiescence can also occur by failure to take action in a timely fashion. Failure to act before a known deadline can create a contractual obligation.
A bill which has passed through the various legislative steps required for it and which has become law.
Act of God
An event, usually a disaster, caused solely by the effect of nature or natural causes. Insurance contracts often waive their obligations for damage caused by hurricanes, floods or earthquakes, calling them “acts of God”. See also “force majeure”.
Latin: refers to the parts or sections of a petition that speaks to the damages that were suffered and claimed by the plaintiff. The ad damnum part of a petition will usually suggest an amount in dollars that the plaintiff asks the court to award.
An addition to a written document. A petition maybe added to a writ and thus become an addendum.
From the Latin meaning “to take away”. This refers to a legacy that is extinguished by the testator by disposal of the property before his death. Property not in the possession of the testator at the time of death cannot be willed away.
A contract presenting at the point of sale, setting out the terms and conditions of the sale. There is no opportunity for negotiation and the terms are usually to the advantage of the seller. Known as the “fine print”.
Latin: for this purpose; for a specific purpose; a special case only. An ad hoc committee, for example, is created with a unique and specific purpose or task and once it has studied and reports on the matter, it stands disbanded (compare with standing committee).
Latin: endlessly; without limit; indefinitely. Abbreviated “ad inf”.
Latin: for the suit. A person appointed only for the purposes of prosecuting or defending an action on behalf of another such as a child or mentally challenged person. Also called a guardian ad litem.
Synonymous with “natural justice.” Administrative law is that body of law that applies for hearings before quasi-judicial or administrative tribunals. This would include, as a minimum, the principles of natural justice as embodied in audi alteram partem and nemo judex in sua causa. Many quasi-judicial organizations or administrative tribunals supplement the rules of natural justice with their own detailed rules of procedure.
Hybrid adjudicating authorities that straddle the line between government and the courts. Between routine government policy decision-making bodies and the traditional court forums lies a hybrid, sometimes called a “tribunal” or “administrative tribunal” and not necessarily presided by judges. These operate as a government policy-making body at times but also exercise a licensing, certifying, approval or other adjudication authority which is “quasi-judicial” because it directly affects the legal rights of a person. Administrative tribunals are often referred to as “Commission”, “Authority” or “Board.”
A person assigned by a court to manage and settle an estate in which the deceased died without a will, or intestate. A female administrator is called an “administratrix”. See also “executor”.
Abbreviation for alternative dispute resolution (which see).
Voluntary sexual intercourse between a married person and another person who is not the spouse. This is a legal ground for divorce in most countries. The person who seduces another’s spouse is known as the “adulterer.”
Also often called “squatter’s rights”. The possession of land, without legal title, for a period of time sufficient to become recognized as legal owner. Different states stipulate different periods of time after which a squatter can acquire legal title. Some states prohibit adverse possession.
Literally, “he who has made an oath”. A statement in writing which the signer swears to be true upon oath. The affidavit must be made before a notary public or other official authorized to administer oaths. Courts will frequently accept an affidavit instead of the testimony of a witness.
In law, a person who has received the power to act on behalf of another, referred to as the “principal.” The principal is bound as if he or she were themselves making the decisions.
In tort law, special and highly exceptional damages awarded by a court to a plaintiff or victim who has suffered particularly humiliating or malicious acts.
To transfer the ownership of property, especially real property, to another.
Literally, “food” or “support”. An allowance paid to one spouse to another by court order while they are separated or divorced. At one time, “alimony” referred to support paid while the couple were separated but still married, while “maintenance” referred to support paid after divorce. Today, “alimony” is used for both circumstances.
A military treaty between two or more entities, providing for a mutually planned offensive, or for assistance in the case of attack on any member.
Land ownership that is free of any superior claim and independent of rent, payment in service, or any other kind of payment. Also known as “freehold”.
A piece of paper which has been attached to a legal document to allow signatures to be added because there is not enough room on the main document.
Alternative dispute resolution
Also known as “ADR”; resolution of legal conflicts and disputes other than through litigation in the public courts. This is usually done through mediation or arbitration (which see). A third party is appointed to preside over a hearing between the parties, which is less formal than the court process. It is quicker and less costly than court litigation and has the advantage of being private. Its disadvantage is that it often involves compromise.
To join together into one, such as the amalgamation of different companies to form a single company.
The highest ranking diplomatic position; a citizen officially appointed by their country’s government to legally represent it in another country.
Literally, “to walk”. In law, something which can be changed or revoked, such as a will.
In law, to change or to revise a written document.
Literally: friend of the court. Specifically, person or persons asking for permission to intervene in a case in which they are not otherwise involved, usually to present their point of view (or that of their organization) in a case which has the potential of setting a legal precedent in their area of activity, for example, in civil rights cases. In some instances, this can only be done with the permission of the parties or the court.
Latin: an intention to contract.
To invalidate by court action; make void; to make as if it never had been. For instance, a marriage can be annulled. It is struck from all records and stands as having never transpired in law, unlike a divorce, which cancels a valid marriage only from the date of the divorce. An action annulled stands, in law, as if never performed.
Literally, “before date”. To set an earlier date for an event, for instance to date a check earlier than it was written.
Literally, “before marriage”. An event or document which pre-dates a marriage, such as an “antenuptial agreement” that is signed before the marriage.
Legislation which regulates business monopolies by preventing businesses from price-setting or any other secret collaboration which circumvents the natural forces of a free market economy and gives those engaging in the anti-trust conduct, a covert competitive edge. Also known as “anti-combines” or “competition” legislation.
To transfer a case to a more senior court or person to rehear or review a lower court ruling. In the USA, appeals can continue all the way up to the Supreme Court, where the decision is final in that it can no longer be appealed.
To attend in court as any party to a civil or criminal suit. Appearance implies your acceptance of the power of the court to try the matter (i.e. “jurisdiction”). Most commonly appearances are made by lawyers on their clients’ behalf and any appearance by a lawyer binds the client. A limited appearance, called a “special appearance”, can be used to challenge the jurisdiction of the court rather than imply acceptance. For instance, if you wished to raise the fact that you were never properly served with the court papers you would make a “special appearance”.
To divide and distribute something into proportionate parts; according to a set plan. For example, if a court ordered apportionment of a contract, the party would be required to perform only to an extent equal to the performance of the other side.
Something that, although detached, stands as part of another thing. An attachment or appendage to something else. Used often in a real estate context where an “appurtenance” may be, for example, a right-of-way over water, which, although physically detached, is part of the legal rights of the owner of another property.
An alternative dispute resolution method by which an independent, neutral third person (“arbitrator”) is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award. The process is similar to the litigation process as it involves adjudication, except that the parties choose their arbitrator and the manner in which the arbitration will proceed. The decision of the arbitrator is known as an “award.” Compare with mediation. See also “alternative dispute resolution”.
In USA criminal law, the formal appearance of an accused person to hear, and to receive a copy of, the charge against him or her, in the presence of a judge, and to then enter a plea of guilty or not guilty. The arraignment is the final preparatory step before the criminal trial.
A debt that is not paid on the due date adds up and accumulates as “arrears”. For example, if you do not pay your rent, the debt still exists and is referred to as “arrears”. The same word is used to describe child or spousal maintenance or support which is not paid by the due date.
Some countries define “arson” as the intentional setting of a fire to a building in which people live; others include as “arson” the intentionally setting of a fire to any building. In either case, this is a very serious crime and is punishable by a long jail sentence.
The touching of another person with intent to harm, without that person’s consent.
To give, to transfer responsibility, to another. The assignee (sometimes also called “assigns”) is the person who receives the right or property being given and the assignor is the person giving.
Attorn or Attornment
To consent, implicitly or explicitly, to a transfer of a right. Often used to describe a situation where a tenant, by staying on location after the sale of the leased property, accepts to be a tenant of the new landlord; or where a person consents to (“attorns to”) the jurisdiction of a court which would not have otherwise had any authority over that person.
An alternate word for lawyer or “barrister & solicitor”, used mostly in the USA. A person that has been trained in the law and that has been certified to give legal advice or to represent others in litigation.
Audi alteram partem
Latin: a principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard.
French word now part of English criminal law terminology. Refers to an accused who cannot be tried for a crime because the record shows he has already been subjected to trial for the same conduct and was acquitted. If the accused maintains that the previous trial resulted in conviction, he or she pleads “autrefois convict.” “Autrefois attaint” is another similar term; “attainted” for a felony, a person cannot be tried again for the same offence.
A vinculo matrimonii
Latin: of marriage. The term is now used to refer to a final and permanent divorce.
Land accretion that occurs by the erosion or addition of one’s land by the sudden and unexpected change in a river stream such as a flash flood.
Latin: a mother’s brother. “Avuncular” refers to an uncle.
Bad faith/Intent to deceive
A person who intentionally tries to deceive or mislead another in order to gain some advantage.
Bail Criminal law
A commitment made (and possibly secured by cash or property) to secure the release of a person being held in custody and suspected of a crime, to provide some kind of guarantee that the suspect will appear to answer the charges at some later date.
One who receives property through a contract of bailment, from the bailor, and who may be committed to certain duties of care towards the property while it remains in his or her possession.
Transfer of possession (of something) by the bailor to another person called the bailee, for some temporary purpose (eg. storage), after which the property is either returned to the bailor or otherwise disposed of in accordance with the contract of bailment.
One who temporarily transfers possession of property to another, the bailee, under a contract of bailment.
The formal condition of an insolvent person being declared bankrupt under law. The legal effect is to divert most of the debtor’s assets and debts to the administration of a third person, sometimes called a “trustee in bankruptcy”, from which outstanding debts are paid pro rata. Bankruptcy forces the debtor into a statutory period during which his or her commercial and financial affairs are administered under the strict supervision of the trustee. Bankruptcy usually involves the removal of several special legal rights such as the right to sit on a board of directors or, for some professions that form part of the justice system, to practice, such as lawyers or judges. Commercial organizations usually add other non-legal burdens upon bankrupts such as the refusal of credit. The duration of “bankruptcy” status varies from state to state but it does have the benefit of erasing most debts even if they were not satisfied by the sale of the debtor’s assets.
A trust in which all the duties imposed upon the trustee have been performed or any conditions or terms have come to fruition, such that there is no longer any impediment to the transfer of the property to the beneficiary. The trust is then said to have become passive for the trustee.
A litigation specialist; a lawyer who restricts his or her practice to the court room. In England and some other Commonwealth jurisdictions, a legal distinction is made between barristers and solicitors. Solicitors have exclusive privileges of advising clients and providing legal advice. Barristers have exclusive privileges of appearing in a court on behalf of a client. In other words, solicitors don’t appear in court on a client’s behalf and barristers don’t give legal advice to clients. A solicitor will “brief” a barrister in behalf of their client. In England, barristers and solicitors work as a team: a solicitor would typically make the first contact with a client and if the issue cannot be resolved and proceeds to trial, the solicitor would transfer the case to a barrister for the duration of the litigation. Lawyers in some countries, such as Canada, sometimes use the title “barrister and solicitor” even though, there is no legal distinction between the advising and litigating roles. Canadian lawyers, like American attorneys, can litigate or give legal advice.
An illegitimate child, born of a relationship between two persons not married (i.e., not in wedlock) to each other, or who are not married to each other at the time of the child’s birth. Conception out of wedlock does not usually constitute bastardy.
A judge in court session.
Literally, one who benefits. In a legal context, a “beneficiary” usually refers to the person for whom a trust has been created. It may also be referred to as a “donee” or as a cestui que trust. Trusts are made to advantage a beneficiary (i.e., a “settlor” or “donor” transfers property to a trustee, the profits of which are to be given to the beneficiary).
An international copyright treaty based on the principle of national treatment, called the Convention for the Protection of Literary and Artistic Works. It was signed at Berne, Switzerland in 1886 and amended several times, as late as 1971. 77 nations now subscribe to it, including all major trading countries, with the notable exception of Russia.
Marriage to more than one person at the same time. This is a criminal offence in most countries.
Bill of exchange
A written order, for instance a check, from one person (the payor) to another (the payee), signed by the payor. It requires the person to whom it is addressed to pay (on demand or at some fixed future date), a certain sum of money, to either the person identified as payee or to any person presenting the bill of exchange. A check is a bill of exchange giving the order to pay to a bank.
Bill of lading
A document used by a transport company acknowledging receipt of goods, and serving as title for the purpose of transportation.
A trust set up by a settlor who cannot assert any power over the trust other than the right to terminate the trust. The trust is administered without any accounting to the beneficiary/settlor or allowing him the retention of any other measure of control over the trust’s administration.
Property belonging to no person, and which may be claimed by a finder. In some states, the government becomes owner of all bona vacantia property.
Born out of wedlock
Illegitimate; illegitimacy; bastardy. Born of parents who were not married to each other at the time of birth.
Breach of contract
To fail to perform what one promised to perform under the terms of a contract. Proving breach of contract is a prerequisite for any suit for damages based on the contract.
Breach of trust
A “trustee” is created by the terms of a trust agreement or the law of trusts. Any act or omission on the part of the trustee which is inconsistent with those terms creates a “breach of trust”. A prime example is the redirecting of trust property from the trust to the trustee’s personal use.
So-called “unnatural” sex acts, including copulation, either between two persons of the same sex or between a person and an animal (the latter act also known as “bestiality”). Homosexual activity is gradually being decriminalized, but bestiality is illegal in most countries. See also “sodomy”.
Burden of proof
A rule of evidence requiring that a fact be proved or the contrary fact will be assumed by the court. In criminal trials, for example, the “burden of proof” lies with the prosecution. They must prove the accused guilty because innocence is presumed.
The law of the Christian Church having little or no legal effect today. Canon law refers to the body of law which has been set by the Christian Church and which, in almost all countries, is not binding upon citizens and has virtually no recognition in the judicial system. Some citizens resort to canon law, however, for procedures such as marriage annulments to allow for a Christian church marriage where one of the parties has been previously divorced. Many churchgoers and church officers abide by rulings and doctrines of canon law. See also “ecclesiastical law.”
Called “capital” because it is the most extreme punishment that can be meted out. Also known as the death penalty, capital punishment has been banned in many countries. In the United States, an earlier move to eliminate capital punishment has now been reversed and more and more states are resorting to capital punishment for serious offenses such as murder.
Law based on the entire collection of published legal decisions of the courts. These decisions contribute to a large part of the legal rules which apply in modern society. If a rule of law cannot be found in written laws it is a rule that can often be found in “case law”. In other words, the rule is not in the statute books but can is principle of law, or precedent, established by a judge in some recorded case. The word jurisprudence has become synonymous for case law. See also “jurisprudence”, “precedent”, and “stare decisis”.
Latin: let him beware. A formal warning.
Literally, let the buyer beware. This means that buyers should examine and check for themselves anything which they intend to purchase, and that the vendor cannot be held responsible for the condition of the thing bought.
A writ of certiorari is a form of judicial review. A court may be asked to consider a legal decision of an administrative tribunal, judicial office or organization (e.g. government), to decide if the decision has been regular and complete or if there has been an error of law. For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.
Cestui que trust or cestui que use
The formal Latin word for the beneficiary or donee of a trust.
Latin “all things being equal or unchanged”.
An agreement to finance another’s lawsuit in exchange for a portion of the judicial award.
A person who has never voluntarily had sexual intercourse outside of marriage, such as unmarried virgins.
Originally a term for “cattle” from the feudal era, when livestock was the most valuable property other than land. Today, it refers to any moveable item of property which is neither land nor permanently attached to land or a building, either directly or vicariously through attachment to real property. A piano is chattel but an apartment building, a tree or a concrete building foundation are not. The opposite of chattel is real property which includes lands or buildings. All property which is not real property is said to be chattel. “Personal property” and “personalty” are other words sometimes used to describe the concept of chattel.
An interest given on moveable property (chattel) other than real property, in writing, to guarantee the payment of a debt or the execution of some action. It automatically becomes void when the debt is paid or the action is executed. An interest on real property is termed a “mortgage”.
Check or cheque
A form of bill of exchange where the order to pay is given to a bank which is holding the payor’s money.
Chose in action
A right of property in intangible things or in things which are not in one’s possession, which right is enforceable through legal or court action. Examples may include salaries, debts, insurance claims, shares in companies, and pensions.
Evidence which may allow a judge or jury to deduce a certain fact from other facts which have been proven. In some cases, there may be evidence essential to prove a case that cannot be proven directly, such as with an eye-witness. In these cases, the lawyer will provide the judge or juror with evidence of the circumstances from which a juror or judge can logically deduct, or reasonably infer, the fact that cannot be proven directly; it is proven by the evidence of the circumstances; hence, “circumstantial” evidence. Fingerprints are an example of circumstantial evidence: while there may be no witness to a person’s presence in a certain place, or contact with a certain object, the scientific evidence of someone’s fingerprints is persuasive proof of a person’s presence or contact with an object.
An order of a court to either do a certain thing or to appear before it to answer charges. The citation is typically used for lesser offences (such as traffic violations) because it relies on the good faith of the defendant to appear as requested, as opposed to an arrest or bail. The penalty for failing to obey a citation is often a warrant for the arrest of the defendant.
Law inspired by old Roman Law, the primary feature of which was that laws were written into a collection; codified, and not determined, as is common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
Something kept purposely from the view or knowledge of others either in violation of the law or to conduct or conceal some illegal purpose. A “clandestine marriage” would be one which does not comply with laws related to publicity.
Disparate lawsuits combined by the plaintiffs in to a single action because the circumstances and defendant are identical. This saves court time and allows one judge to hear all the cases at the same time and to make one decision binding on all parties. Class action lawsuits would typically occur after a plane or train accident where all the victims would sue the transportation company together in a class action suit.
An English case which established a presumption that monies withdrawn from a money account are presumed to be debits from those monies first deposited. First in, first out. The proper citation is Devaynes v. Noble (1816) 1 Mer. 572) and the presumption is not applicable to fiduciaries, who are presumed to withdraw their won money first, and not trust money.
A maxim of the law to the effect that any person, individual or corporate, that wishes to ask or petition a court for judicial action, must be in a position free of fraud or other unfair conduct.
A right of the client of a lawyer to have any information or words spoken by the client to the lawyer during the provision of the legal services to that client, kept strictly confidential. This includes being shielded from testimony before a court of law. The client may, expressly or impliedly, waive the privilege. It may also be waived by the lawyer if the disclosure of the information may prevent a serious crime in an exceptional case.
An amendment to an existing will. The codicil changes only the items mentioned in it, not the entire will.
Property which has been committed to guarantee a loan. This may be the property being purchased by the loan (as in a car) or other property pledged as a guarantee (such as a certificate of deposit or other financial instrument). Persons other than the one acquiring the loan may pledge collateral in the borrower’s behalf.
A descendant that is not direct, such as a niece or a cousin.
Collateral source rule
A rule of tort law which holds that the one who causes the damage (tort-feasor) cannot deduct from the amount he or she would be held to pay to the victim of the tort, any goods, services or money received by that victim from “collateral” sources as a result of the tort (e.g. insurance benefits).
A secret agreement between two or more persons, who seem to have conflicting interests, to abuse the law or the legal system, deceive a court, or to defraud a third party. For example, if the partners in a marriage agree to lie about the duration of their separation in order to secure a divorce.
A formal group of experts brought together on a regular or ad hoc basis to debate matters within their sphere of expertise, and with regulatory or quasi-judicial powers such as the ability to license activity in that sphere of activity or to subpoena witnesses. Commissions usually also have advisory powers to government and a commission is often resorted to by governments to exhaustively investigate a matter of national concern, known as a “commission of inquiry.” This legal structure can be contrasted with a council, the latter not enjoying quasi-judicial or regulatory powers.
A term of parliamentary law which refers to a body of one or more persons appointed by a larger assembly or society, to consider, investigate and/or take action on certain specific matters. A committee only has those powers which have been assigned to it by the constituent assembly. Most are merely created to study matters in detail and to then report to the larger group. This saves the larger assembly time when it meets and allows it to review and approve a greater number of items, relying on the committee’s report and recommendations. Committees are either standing or ad hoc (this latter kind is also known as a “special committee”).
Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather by judges, it is also referred to as “unwritten” law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgment. Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the “common sense of the community, crystallized and formulated by our ancestors”. Equity law developed after common law to offset the rigid interpretations medieval English judges were giving the common law. For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity, and the decisions of the latter, where they conflicted, prevailed. It is a matter of legal debate whether or not common law and equity are now “fused.” It is certainly usual to speak of the “common law” as referring to the entire body of English law, including common law and equity.
The basic share in a company. Typically, common shares have voting rights and a pro rata right to any dividends declared. They differ from preferred shares which, by definition, carry some kind of right or privilege above the common shares (e.g. first to receive any dividends).
A legal entity, allowed by legislation, which permits a group of people, as shareholders, to create an organization, which can then focus on pursuing set objectives, and which is empowered with legal rights which are usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money. Also known as a “corporation.” The primary advantage of a company structure is that it provides the shareholders with a right to participate in the profits (by dividends) without any personal liability (the company absorbs the entire liability of the business).
A principle of tort law which looks at the negligence of the victim. If the victim’s negligence, when compared with the defendant’s, is equal to or greater in terms of contributing to the situation which caused the injury or damage, such comparative negligence may lead to either a reduction of the award against the defendant, proportionate to the contribution of the victim’s negligence, or even prevent an award altogether.
A contractual condition that suspends the coming into effect of a contract unless or until a certain event takes place. Many residential real estate contracts have a condition precedent which states that the contract is not binding until and unless the property is subjected to a professional inspection, the results of which are satisfactory to the purchaser. Compare with “condition subsequent”.
A condition in a contract that causes the contract to become invalid if a certain event occurs. This is different from a condition precedent. The happening of a condition subsequent may invalidate a contract which is, until that moment, fully valid and binding. In the case of a condition precedent, no binding contract exists until the condition occurs. See also “condition precedent”.
The obvious or implied forgiveness of a fault. Generally used in reference to divorces which can be obtained by showing a fault of the other spouse, such as adultery or cruelty. But a court will refuse to grant a divorce based on these grounds if there has been “condonation”. For example, if the “injured” spouse resumes cohabitation with the “guilty” spouse after being informed of the adultery of that spouse, and for a long period of time, the “injured” spouse may be barred from divorce on the grounds of adultery because of “condonation”.
A statement made by a person suspected or charged with a crime, that he (or she) did, in fact, commit that crime.
A result achieved through negotiation whereby a hybrid solution is arrived at between parties to an issue, dispute or disagreement, comprised typically of concessions made by all parties, and to which all parties then subscribe unanimously as an acceptable resolution to the issue or disagreement.
Consensus ad idem
Latin term meaning an agreement, a meeting of the minds between the parties where all understand the commitments made by each. This is a basic requirement for each contract.
Under common law, there can be no binding contract without consideration, defined in an 1875 English decision as “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other”. Common law did not allow gratuitous offers, those made without anything offered in exchange (such as gifts), to be given the protection of contract law, so the criterium of consideration was created. Consideration is not required in contracts made in civil law systems, and many common law states have adopted laws which remove consideration as a prerequisite of a valid contract.
To leave an item of property in the custody of another. An item can be consigned to a transportation company, for example, for the purpose of transporting it from one place to another. The consignee is the person who receives the property and the consignor is the person who ships the property to the consignee. Ownership does not pass in the act of consignment.
An agreement between two or more persons to commit a criminal act. Those forming the conspiracy are called conspirators.
The basic law or laws of a nation or a state which sets out how that state will be organized by deciding the powers and authorities of government between different political units, and by stating the basic principles of society. Constitutions are not necessarily written and may be based on aged customs and conventions, as is the case in England and New Zealand (the USA, Canada and Australia all have written constitutions).
The legal process of interpreting a phrase or document; of trying to find its meaning. Whether it is a contract or a statute, there are times when a phrase may be unclear or have several meanings. Then, either lawyers or judges must attempt to interpret or “construct” the probable aim and purpose of the phrase, by extrapolating from other parts of the document or, in the case of statutes, referring to an interpretation law which gives legal construction guidelines. Generally, there are two types of construction methods: literal (strict) or liberal.
Under the employment law of some states, a fundamental violation of the rights of an employee, by the employer, may be so severe that judges will consider it a situation in which the employee would have the right to consider himself as dismissed, even though, in fact, there has been no act of dismissal on the part of the employer. For example, if an employer tries to force an employee to accept a drastic demotion, the employee may have a case for constructive dismissal and would be able to assume that the employment contract has been ended and seek compensation from a court.
A trust which a court declares or imposes onto participants of very specific circumstances such as those giving rise to an action for unjust enrichment, and notwithstanding the lack of any willing settlor to declare the trust (contrast with express trusts and resulting trusts).
Contempt of court
An act of defiance of court authority or dignity. Contempt of court can be direct (swearing at a judge or violence against a court officer) or constructive (disobeying a court order). The punishment for contempt is a fine or a brief stay in jail (i.e. overnight).
A method of payment of legal fees “contingent” on winning a lawsuit and represented by a percentage of the award. Lawyers generally receive compensation by either a straight hourly rate (e.g. $400 an hour) or on contingency, agreeing to be paid only if the claim is successful and taking a portion (e.g. one-third) of any award that comes after the filing of the claim. Contingency fees allow the client to receive legal services without putting any money down and allow the lawyer to advertise “we don’t get paid unless you do.” Legal associations in some countries prohibit contingency fee arrangements. In those countries that allow them, they are very prevalent in personal injury cases.
An agreement between persons which obliges each party to do or not to do a certain thing. The three requirements of a valid contract are an offer, an acceptance of that offer, and, in common law countries, consideration.
That body of law which regulates the enforcement of contracts. Contract law is as old as civilization, since a legal system was created to support and to facilitate trade. The English and French developed similar contract law systems, both referring extensively to old Roman contract law principles such as “consensus ad idem” or “caveat emptor”. There are some minor differences on points of detail such as the English law requirement that every contract contain consideration. More and more states are changing their laws to eliminate consideration as a prerequisite to a valid contract thus contributing to the uniformity of law. Contract law is the basis of all commercial dealings from buying a movie ticket to trading on the stock market.
The negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred.
The act of assuming and exercising right of ownership over personal property belonging to another, altering its condition or excluding the real owner’s rights. Common law allows for an owner of property to sue for damages against a defendant who came across the property and who, rather than return the property, “converts” that property to his own use or retains possession of the property or otherwise interferes with the property. The innocence of the defendant who took the property is not an issue. It is the conversion that gives rise to the cause of action. See also “trover” and “detinue”.
A written document transferring property from one person to another. In real estate law, the conveyance usually refers to the actual document which transfers (conveys) ownership, between persons living (i.e. other than by will), or which charges the land with another’s interest, such as a mortgage.
The formal decision of a criminal trial which finds the accused guilty. It is the finding of a judge or jury, on behalf of the state, that a person has, beyond reasonable doubt, committed the crime for which he, or she, has been accused. It is the ultimate goal of the prosecution and the result resisted by the defense. Once convicted, an accused may then be sentenced.
An estate in which all the heirs by descent are treated as one heir, having one estate.
The right of literary property protected by law. The holder of the copyright is invested in the sole right to reproduce, publish, and sell the artistic or literary production. Many countries have expanded the definition of a “literary work” to include computer programs or other electronically stored information.
A public official who holds an inquiry into violent or suspicious deaths. A coroner has the power to summon people to an inquest.
A punishment which involves the infliction of pain on, or harm to the body for some violation of conduct. A fine or imprisonment is not considered to be corporal punishment (in the latter case, although the body is confined, no punishment is inflicted upon the body). The death penalty is the most drastic form of corporal punishment and is also called capital punishment. Spanking, whipping, or bodily mutilation inflicted as punishment are forms of corporal punishment
Officer of a corporation responsible for the official documents of the corporation such as the official seal, records of shares issued, and minutes of all board or committee meetings.
A legal entity (or “company”), allowed by legislation, which permits a group of people, as shareholders (for-profit companies) or members (non-profit companies), to create an organization, which then focuses on pursuing set objectives. It is legally an entity empowered with legal rights which are usually only reserved for individuals, such as the right to sue and be sued, to own property, hire employees, or loan and borrow money. The primary advantage of for-profit corporations is that it provides its shareholders with a right to participate in the profits (by dividends) without any personal liability, because the company or corporation absorbs the entire liability.
Generally, a financial payment made to the successful party to a lawsuit, recoverable from the losing party. A person condemned to “costs” has to pay all the court costs, such as the fees for bringing the action, witness fees and other fees paid out by the other side in bringing the action to justice. A court can also condemn a losing party to “special costs” but this is considered punitive as it would include the other side’s lawyer bill. The rule in most places is that “costs follows the event” which means that the loser pays. In most states, the court has the final say on costs and may decide not to make an order on costs.
A formal group of experts brought together on a regular basis to debate matters within that sphere of expertise, and with advisory powers to government. It can be contrasted with a commission which, although also a body of experts, is typically given regulatory powers in addition to a role as advisor to the government.
A military court set up to try and punish offenses by members of the armed forces.
Court of admiralty
Archaic term used to denote the court which has the right to hear shipping, ocean and sea legal cases. Also known as “maritime law”.
A written document in which signatories either commit themselves to do a certain thing, to not do a certain thing or in which they agree on a certain set of facts. They are very common in real property dealings and are used to restrict land use such as amongst shopping mall tenants or for the purpose of preserving heritage property.
A person to whom money, goods or services are owed by the debtor.
An act or omission prohibited by criminal law. The acts are defined by each state, setting out a limited series of acts (crimes) which are prohibited and punishing the commission of these acts by a fine, imprisonment or some other form of punishment. In exceptional cases, an omission to act can constitute a crime, such as failing to give assistance to a person in peril or failing to report a case of child abuse.
Synonymous with adultery. In old English law, this was a claim for damages the husband could institute against the adulterer. Archaically, “intercourse” and “conversation” were synonymous.
That body of the law that deals with conduct considered so harmful to society as a whole that it is prohibited by statute, prosecuted and punished by the government.
Each party may also question the other’s witness(es). This is called a “cross-examination”. Considerable more latitude is allowed in cross-examination than in questioning one’s own witnesses (called an “examination-in-chief”). For example, one cannot ask leading questions of one’s own witness but one can do so in cross-examination of the other party’s witnesses.
Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: “who owns the land, owns down to the center of the earth and up to the heavens”. A principle of land ownership which has been greatly tempered by case law limiting ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly.
Latin, literally “gross negligence”. It is more than simple negligence and includes any action or an omission in reckless disregard of the consequences to the safety or property of another.
An archaic term meaning the yard surrounding a residence or dwelling house which is reserved for or used by the occupants for their enjoyment or work. Curtilage may or may not be enclosed by fencing and includes any outhouses such as stand-alone garages or workshops. It is a term sometimes used in a search warrant which calls for a search of the residence and curtilage of a particular person.
Charge and control of a child, including the right to make all major decisions such as education, religious upbringing, training, health, and welfare. Custody, without qualification, usually refers to a combination of physical custody and legal custody. See also, “joint custody”, “split custody” and “divided custody”.
Literally, “As near as may be”: a technical word used in the law of trusts or of wills. Refers to a power that the courts have to construct or interpret a will or a trust document “as near as may be” to the actual intentions of the signatory, rather than void the document because a literal construction would give the document illegal, impracticable or impossible effect.
A cash compensation ordered by a court to offset losses or suffering caused by another’s fault or negligence. Damages are a typical request made of a court when persons sue for breach of contract or tort.
Also known as capital punishment. The most severe form of corporal punishment. Forms of the death penalty include hanging, lethal injection, gassing, firing squad and has included use of the guillotine.
One who owes money, goods or services to another, the latter being referred to as the creditor.
The act of beheading a person, usually instantly such as with a large and heavy knife or by guillotine, as a form of capital punishment. This form of capital punishment is still in use in some Arab countries, notably Saudi Arabia.
The name given to the final and conclusive court order after the condition of a decree nisi (which see) is met.
A provisional decision of a court not having force or effect until a certain condition is met, such as another petition being brought before the court, or after the passage of a period time. Although no longer required in many jurisdictions, this was the model for divorce procedures wherein a court would issue a decree nisi, which would have no force or effect until a period of time passed (30 days or 6 months). When the conditions are met, the decision becomes a decree absolute (which see).
A written and signed document setting out the actions that must be carried out or recognitions of the parties towards a certain object. Under older common law, a deed had to be sealed; that is, accompanied not only by a signature but with an impression on wax onto the document. The word deed is also most commonly used in the context of real estate because these transactions must usually be signed and in writing.
To accept a document or an event as conclusive of a certain status in the absence of evidence or facts which would normally be required to prove that status. For example, in matters of child support, a decision of a foreign court could be “deemed” to be a decision of the court of another for the purpose of enforcement.
Latin: as a matter of fact; something which exists in fact even if not necessarily lawful or legally sanctioned. For instance, a common law spouse may be referred to as a de facto wife or de facto husband: although not legally married, they live and carry on their lives as if married. A de facto government is one which has seized power by force or in any other unconstitutional method and governs in spite of the existence of a de jure (which see) government.
1. Defaulting on a debt or other obligation by one who has to account for public or trust funds. Usually used in the context of public officials. 2. Defalcation has another legal meaning, referring to the setting-off of two debts owed between two people by the agreement to a new amount representing the balance. For instance, A owes $10 to B and B owes A $3; they agree to “defalk” , resulting in A now owing $7 to B. The two previous debt instruments are canceled and replaced by the new one. See also “novation”.
An attack on the good reputation of a person, by slander or libel (which see).
A side-contract containing a condition which, if realized, could defeat the main contract. The common English usage of the word “defeasance” has also become acceptable in law, referring to a contract that is susceptible to being declared void as in “immoral contracts are susceptible to defeasance.”
The person, company or organization defending a legal action taken by a plaintiff. The court will be asked to order damages or specific corrective action to redress some type of unlawful or improper action alleged by the plaintiff against the defendant.
French for outside. In the context of legal proceedings, it refers to that which is irrelevant or outside the scope of the debate.
Latin: “of the law.” The term has come to describe a total adherence of the law. For example, a de jure government is one which has been created in respect of constitutional law. It will be in all ways legitimate even though a de facto government may be in control.
Delegatus non potest delegare
One of the pivotal principles of administrative law: that a delegate cannot delegate. In other words, a person to whom an authority or decision-making power has been delegated to from a higher source, cannot, in turn, delegate it again to another, unless the original delegation explicitly so authorizes.
A letter from a lawyer, on behalf of a client, that demands payment or some other action, which is in default. A demand letter sets out why the payment or action is claimed, how it should be carried out (e.g. payment in full), instructions for replying, and a deadline for the reply. Demand letters are not always prerequisites for a legal suit but there are exceptions, such as legal action on promissory notes or if the contract requires it. They are often used in business contexts as a courtesy attempt to maintain some goodwill between business parties. They often prompt payment, avoiding expensive litigation since a demand letter often contains the “threat” that if it is not responded to, the next communication between the parties will be through a court of law in the form of formal legal action.
A coined word created by diplomats, referring to a strongly worded warning by one country to another and often, either explicitly or implicitly, with the threat of military consequence. Demarches are often precursors to hostilities or war.
De minimis non curat lex
Latin: “the law does not concern itself with trifles”. A common law principle whereby judges will not sit in judgment of extremely minor transgressions of the law.
A motion put to a trial judge by the defendant, asking the court to reject the petition of the plaintiff because of a lack of basis in law or insufficient evidence . This occurs after the plaintiff has completed his or her case. The defendant is neither objecting to the facts presented nor responding by a full defense. This motion has been abolished in many states and, instead, any such arguments are to be made while presenting a regular defense to the petition.
Latin: new. This term is used to refer to a trial which starts over, wiping the slate clean and beginning all over again, as if any previous partial or complete hearing had not occurred.
To remove a foreign national to his home country or another country, under immigration laws. Such removal is usually based on reasons such as illegal entry or conduct dangerous to the public welfare. Grounds for deportation vary from country to country.
The official statement by a witness taken in writing (as opposed to testimony which where a witnesses give their perception of the facts verbally). Affidavits are the most common kind of depositions.
One who is born of, or from children of, another is called that person’s descendant. Grandchildren are descendants of their grandfather, as children are descendants of their natural parents. The law also distinguishes between collateral descendants and lineal descendants (which see).
A common law action involving the possession of property by the defendant but belonging to the plaintiff, asking the court for the return of the property. The plaintiff may also ask for damages for the duration of the possession. See also “conversion”.
Latin for “he has wasted.” A technical term referring to a personal representative who has mismanaged an estate and allowed an avoidable loss to occur. This action opens the personal representative to personal liability for the loss.
The transfer or conveyance of real property by will.
Dicta or dictum
Latin: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of stare decisis. May also be called “obiter dictum.”
An official representative of a government, present in another country for the purposes of general representation of the state-of-origin or for the purpose of specific international negotiations on behalf of the diplomat’s state-of-origin.
A trust in which the settlor has given the trustee full discretion to decide which (and when) members of a group of beneficiaries are to receive either the income or the capital of the trust.
A term of maritime law meaning an officer or other seaman is either demoted in rank or deprived of a promotion.
To disagree. The word is used in legal circles referring to the minority opinion of a judge which runs contrary to the conclusions of the majority.
The act of ending, terminating or winding-up a company or state of affairs. For example, when the life of a company is ended by normal legal means, it is said to be “dissolved”. The same is said of marriage or partnerships which, by dissolution, end the legal relationship between those persons formally joined by the marriage or partnership.
The right of a landlord to seize the property of a tenant in the premises rented by the tenant, as collateral. This collateral is against a tenant who has not paid the rent or has otherwise defaulted on the lease, such as wanton disrepair or destruction of the premises. A common way to “distrain” against a tenant is by changing locks and giving notice to the tenant. A legal action to reclaim goods that have been distrained is called replevin (which see).
A proportionate distribution of profits made in the form of a money payment to shareholders, by a for-profit corporation. Dividends are declared by a company’s board of directors.
The final, legal ending of a marriage, by court order.
Abbreviation for deoxyribonucleic acid which is a chromosome molecule carrying genetic coding unique to each person with the only exception being identical twins. That is why it is also called “DNA fingerprinting”. Through a laboratory process, DNA can be extracted from body tissue such a strand of hair, semen, or blood and be matched against DNA discovered at a crime scene or on a victim. This evidence may be used to scientifically implicate an accused. It can also be used to match DNA between parents in a paternity suit.
An official court record book listing all the cases before the court and which may also note the status or action required for each case.
A rule or principle of the law established through the repeated application of legal precedents.
The permanent residence of a person; a place to which, even if he or she were temporarily absent, they intend to return. In law, it is said that a person may have many residences but only one domicile.
Used when referring to easements to specify that property (i.e. tenement) or piece of land that benefits from, or has the advantage of, an easement.
Latin: the qualified ownership of a landlord, not having possession or use of property but retaining ownership. Used in feudal English land systems to describe the King’s ownership of all the land, even though most of it was lent out to lords for their exclusive use and enjoyment.
Latin: the property rights of a tenant. While not owning the property in a legal sense, the tenant, as having “dominion utile”, enjoys full and exclusive possession and use of the property while he is tenant.
Donatio mortis causa
A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues. Such a gift is exempted from the estate of the deceased as property is automatically conveyed upon death. In most jurisdictions, real property cannot be transferred by these death-bed gifts.
Another word describing the beneficiary of a trust. Also used to describe the person who is the recipient of a power of attorney; the person who would have to exercise the power of attorney.
The person donating property for the benefit of another, usually through the legal mechanism of a trust. Some countries refer to the trust donor as a “settlor.” Also used to describe the person who signs a power of attorney.
Latin: bring with you. Used most frequently for a species of subpoena (as in “subpoena duces tecum”) which seeks not so much the appearance of a person before a court of law, but the surrender of a thing (e.g. a document or some other evidence) by its holder, to the court, to serve as evidence in a trial.
A term of US law referring to fundamental procedural legal safeguards to which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen. The most basic right protected under the due process doctrine is the right to be given notice, and the opportunity to be heard. The term is now also in use in other countries, again to refer to basic fundamental legal rights such as the right to be heard.
Latin: for so long as she remains chaste. Separation agreements years ago used to contain dum casta clauses which said that if the woman were to start another relationship, she forfeited her entitlement to maintenance.
Latin: for so long as she remains unmarried.
Latin: for so long as she remains a widow.
A house having separate but complete facilities to accommodate two families, either as adjacent units or one on top of the other.
Threats or force of another preventing a person from acting (or not acting) according to their free will is said to be placing that person “under duress”. Contracts signed under duress are voidable. In many places, conviction of a crime is prevented if one can prove that he was forced or threatened into committing the crime (although this defense may not be available for serious crimes).
A type of servitude granting a right of passage over a neighbor’s land or waterway. Every easement has a dominant and a servient tenement (which see). Easements also can be classified as negative or affirmative. A negative easement prevents the servient land owner from doing certain things stated in the easement agreement. An affirmative easement is the most common and allows the beneficiary of the easement to do certain things, such as maintain a right-of-way. Although rights-of-way are the most common easements, there are many others such as: rights to tunnel under another’s land; to use a washroom; to emit smoke or fumes; to pass over with transmission towers; to access a dock; and to access a well.
See also canon law. The body of church-made law which binds only those persons recognizing it, usually only church officers, and is based on aged precepts of canon law.
Emancipation today refers to the point at which a child is free from parental control. This can occur in several different circumstances: parents may choose to voluntarily surrender their rights to the care, custody and earnings of their minor child and cease to perform their parental duties; they may imply consent by allowing a minor child to leave her parents’ home and become entirely self-supporting; a minor child becomes emancipated upon marriage or entering the military. The term was also used when slavery was legal to describe the condition of a former slave who had bought or been given freedom from his or her master. When Abraham Lincoln outlawed slavery he did so in a law called the “Emancipation Proclamation”.
An order prohibiting ships or goods from leaving a certain port, city, or territory. This is an act of international military aggression and may be enforced by military threat of destruction of any vehicle that attempts to break the embargo, or by trade penalties. The word can also refer to a legal prohibition of trade with a certain nation or a prohibition towards the use of goods or services produced by or within a certain nation.
The illegal transfer of money or property to one’s own use in violation of trust. The money or property may be legally in the possession of the embezzler but not his property. It is the conversion of the money or property to his own personal use that constitutes embezzlement. For example, an employee could embezzle money from the employer or a public officer could embezzle money received during the course of their public duties and secretly convert it to their personal use.
Eminent domain USA
The legal power of a governmental entity to expropriate private land for the sake of public necessity, even if the owner objects. The owner must receive “just compensation”, which usually means fair market value. Also sometimes called condemnation.
A legal term referring to all wages or other benefits received as compensation for holding some office or employment.
Based on ancient Roman law. A prolonged (for many years or in perpetuity) rental of real property which includes the exclusive enjoyment by the tenant of all products of that real property and the exercise of all property rights typically reserved for the property owner, such as mortgaging the property for the term of the emphyteusis or permitting a right of way.
Emptio or emtio
Latin for “purchase” or the contract in which something is bought.
A document which is published as an enforceable set of written rules, creating a law or statute.
Something written on the back of a document. One example of an endorsement is a signature on the back of a bill of exchange (e.g., a check) by which the person to whom the note is payable transfers it by making the note payable to the bearer or to a specific person, in accordance with the laws of bills of exchange. Another example is an endorsement of claim, which means that if you want to ask a court to issue a writ against someone, you have to “endorse” your writ with a concise summary of the facts supporting the claim, sometimes called a statement of claim.
The transfer of money or property (usually as a gift) to a public organization for a specific purpose, such as medical research or scholarships.
A technique by law enforcement officers or their agents to induce the commission of a crime so that the person induced to commit the crime can be charged. This technique, because it involves artificially provoking and abetting the commission of a crime, which is itself a criminal offence, is severely curtailed under the constitutional law of many states.
A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented “justice” from prevailing. For example, strict common law rules would not recognize unjust enrichment, which was a legal relief developed by the equity courts. The typical Court of Equity decision would prevent a person from enforcing a common law court judgment. The kings delegated this special judicial review power over common law court rulings to chancellors. A new branch of law developed known as “equity”, with their decisions eventually gaining precedence over those of the common law courts. A whole set of equity law principles were developed based on the predominant “fairness” characteristic of equity such as “equity will not suffer a wrong to be without a remedy” or “he who comes to equity must come with clean hands”. Many legal rules, in countries that originated with English law, have equity-based law such as the law of trusts and mortgages.
The legal act of returning property to the government upon the death of the owner, because there is nobody to inherit the property. Escheat is based on the Latin principle of “dominion directum” (which see) as was often used in the feudal system when a tenant died without heirs or if the tenant was convicted of a felony.
The placement of money or a document with a third disinterested person , to be held by that person until the terms of a contract or agreement between two or more other persons are met. The property is then released according to the terms of the agreement or contract.
A term describing that part of the law regulating wills, probate and other subjects related to the distribution of a deceased person’s “estate”.
A rule of law which, according to an 1891 English court decision, is summarized as “a rule of evidence which precludes a person from denying the truth of some statement previously made by himself”. Thus, when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B then takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper.
The putting to death, by painless method, of a terminally-ill or severely debilitated person through the omission (intentionally withholding a life-saving medical procedure, also known as “passive euthanasia”) or commission of an act (“active euthanasia’). See also living will.
Proof of the fact(s) presented at a trial. The best and most common method is by oral testimony, in which you have an eye-witness swear to tell the truth and to then relate to the court (or jury) their experience. Evidence is essential in convincing the judge or jury of your facts as the judge (or jury) is expected to start off with no preconceived idea or knowledge of the facts. It is therefore up to the opposing parties to prove (by providing evidence), to the satisfaction of the court (or jury), the facts needed to support their case. Besides oral testimony, an object can be deposited with the court (e.g. a signed contract, a weapon). This is sometimes called “real evidence.” In other rarer cases, evidence can be circumstantial.
Ex aequo et bono
Latin for “in justice and fairness.” A case decided by principles of what is fair and just, unlike most legal cases which are decided on the strict rule of law. For example, a contract will be normally upheld and enforced by the legal system no matter how “unfair” it may prove to be. But if the case is to be decided ex aequo et bono, the strict rule of law is overridden and the case and requires instead a decision based on what is fair and just given the circumstances.
To question your own witness under oath. Witnesses are introduced to a trial by their examination-in-chief. At that time they answer questions asked by the lawyer representing the party which called them to the stand. After the examination-in-chief, the other party’s lawyer can question them; this is called “cross-examination” (which see).
Something that excuses or justifies a wrong action. Executor That person specifically appointed by a testator to administer the will ensuring that final wishes are respected (i.e. that the will is properly “executed”). An executor is a personal representative.
Any item presented to the court as evidence in a trial. An exhibit is given a number or letter by the court clerk as introduced and referenced by the identification when referred to during the trial. Objects or documents can be exhibits, and, except with special permission of the court, exhibits are locked up in court custody until the trial is over.
Latin: “for one party only”. Ex parte refers to those proceedings where one of the parties did not received notice and, therefore, is neither present nor represented. The choice not to attend, after notification, does not constitute an ex parte proceeding. Some jurisdictions expand the definition to include any proceeding that goes undefended, even though proper notice has been given.
One who has abandoned his or her country of origin and citizenship and has become a subject or citizen of another country.
Ex post facto
Latin: “after the fact”. Any law which attempts to extend backwards in time and punish acts committed before the date of the law’s approval. These laws are constitutionally prohibited in most modern democracies. For example, the USA Constitution prohibits “any ex post facto law”.
A trust created by the settlor, with the clear intent that such a trust be created, usually in the form of a document (e.g. a will), although it can be oral. This contrasts with trusts which come to being through the operation of the law and are not resulting from the clear intent or decision of any settlor to create a trust. See constructive trust.
To physically erase; to white or strike out. To “expunge” something from a court record means to remove every reference to it from the court file.
An abbreviation of “ex relatione”, Latin for “on the relation of.” Information or action taken that is not based on first-hand experience but is based on the statement or account of another person. For example, a criminal charge “ex rel” means that the attorney general of a state is prosecuting on the basis of a statement of a person other than the attorney general.
The use of violence or fear, or the pretense of authority, to force a person to give up property.
Extradition is the arrest and return of a person in one country or state for a crime committed in another country or state. Extradition treaties and agreements exist between many governments.
Ex turpi causa non oritur actio
Latin: “Of an illegal cause there can be no lawsuit.” The principal or accessory of an illegal activity cannot sue another for damages that arose from that criminal activity. For instance, if two persons steal a car and the car crashes, the passenger cannot sue the driver for damages, since the passenger knew the car to be stolen and was a free participant in the theft and subsequent accident. If vehicle crashes injuring the passenger, there is no action in tort against the driver under the ex turpi causa non oritur actio principle.
Fair market value
A hypothetical number representing the most probable price that would be paid for a property by average, informed purchasers.
A term referring to the ownership of property and meaning the most extensive tenure allowed under the feudal system, allowing the tenant to sell or convey by will or to transfer to an heir if the owner dies intestate. In modern law, almost all land is held in fee simple and this is as close as one can get to absolute ownership in common law.
A form of tenure under the feudal system which allowed property to be transferred to a lineal descendant only. In default of lineal descendants upon the death of the tenant, the land reverted back to the lord.
Any crime for which the punishment is prison for more than a year, or death. Crimes of less gravity are called misdemeanors (which see).
The social structure existing throughout much of Europe between 800 and 1400 C.E., consisting of a multi-level hierarchy of lords (who held land granted under tenure from the king), and their tenants (also called “vassals”).Tenants held land from the lord in exchange for loyalty and goods or services, such as military assistance, money, or goods in kind. In exchange, the tenant would be protected from attack.
A fiduciary is person, synonymous to a trustee, who has rights and powers which would normally belong to another person and strict obligations in carrying out those rights. For instance, the fiduciary must exercise those rights only for the benefit of the beneficiary; must not allow any conflict of interest to affect their duties towards the beneficiary; and must exercise a high standard of care in protecting or promoting the interests of the beneficiary. Fiduciary responsibilities also exist for persons other than trustees, such as between lawyer and client or principal and agent.
A writ of fieri facias is executed after a judgment is entered against an individual to pay a debt. It commands a sheriff or other officer of the court to take property from the person who lost the law suit and sell enough to pay the debt owed by the judgment.
French for an act of God (which see). An inevitable, unpredictable act of nature, not dependent on an act of man. Used in insurance contracts to refer to acts of nature such as earthquakes or lightning.
The technical meaning of the word is to wipe out a right of redemption on a property. A foreclosure generally takes place when payment on a mortgage is not made. Since a borrower retains an equitable right of redemption on property (meaning he can make all back payments and retain ownership) even though there have been no present payments, it is necessary to clear the title of this potential. To do this, a lender goes to court, demonstrates the default, and requests that a date be set where the entire amount becomes payable. After which, in the absence of payment, the lender is automatically relieved of the requirement to redeem the property back to the borrower; the debtor’s right of redemption is said to be forever barred and foreclosed. This cancels all rights a borrower would have in the property and the property then belongs entirely to the lender, who is then free to possess or sell the property. The word is frequently used to refer generally to the lender’s actions of repossessing and selling a property for default in mortgage payments.
Deliberate, deceitful conduct designed to manipulate another person to give something of value by (1) lying; (2) repeating something that is or ought to have been known by the fraudulent party as false or suspect; or (3) concealing a fact from the other party which may have saved that party from being cheated. The existence of fraud will cause a court to void a contract and can give rise to criminal liability.
A special right granting the full use of real estate for an indeterminate time. It differs from leasehold (which see), which allows possession for a limited time. There are varieties of freehold such as fee simple and fee tail.
One who owns freehold property rights (i.e. in a piece of real estate; either land or a building).
One who runs away to avoid arrest, prosecution or imprisonment. Many extradition laws also call the suspect a “fugitive” although, in that context, it does not necessarily mean that the suspect was trying to hide in the country from which extradition is being sought.
Latin: an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created.
Goods comprised of many identical parts such as a bushel of grain or a barrel of apples or oil, which can be easily replaced by other, identical goods. Sale of items by weight or number is good evidence that they are fungible.
Furiosi nulla voluntas est
A Latin expression meaning that mentally impaired persons cannot validly sign a will.
To seize a person’s property, credit or salary, on the basis of a law which allows it, for the purposes of paying off a debt. The person who owes the debt and is the subject of the seizure is called a “garnishee”. This is frequently used in the enforcement of child support where delinquent debtors will be subjected to salary garnishment. A percentage of their wages is subtracted directly off their pay-check and directed to the person in need of support (the employer being the garnishee). Many states have a law making garnishment illegal.
A wooden mallet used by a judge to bring proceedings to a start or end or to command attention in court.
General Agreement on Tariffs and Trade (GATT)
Multilateral international treaty first created in 1947 and frequently amended (most recently in 1994) providing for fair trade rules and the gradual reduction of tariffs, duties and other trade barriers. The 1994 amendment created a World Trade Organization, which oversees the implementation of the GATT. 125 countries subscribe to the treaty at this time.
The senior lawyer of a corporation, normally a full-time employee of the corporation. Some corporations contract this position out to a lawyer with a private firm.
A device used in wills and trusts providing for the gift of property to a second recipient if a certain event occurs, such as the death of the first recipient. For example, a testator leaves rental property to an individual but that individual must give the property to his child upon his own death. That is a gift over to the benefit of the child.
An intangible business asset which includes a cultivated reputation and therefore the attraction and confidence of repeat customers and connections. Sales of businesses often include a section of the purchase price for “goodwill”.
An American criminal justice procedure whereby, in each court district, a group of 16-23 citizens holds an inquiry on criminal complaints brought by the prosecutor and decides if a trial is warranted, in which case an indictment is issued. If a Grand Jury rejects a proposed indictment it is known as a “no bill”; if they accept to endorse a proposed indictment it is known as a “true bill”.
An act or an omission in reckless disregard of the consequences to the safety or property of another. Sometimes referred to as “very great negligence”. It is far more than neglect of ordinary care towards others or inadvertence. Also known as the Latin term culpa lata.
A person who pledges collateral for the contract of another, but separately, as part of an independently contract with the obligee of the original contract. Compare with “surety.”
An individual who is given custody of both the property and the person of one who is unable to manage his own affairs, such as a child or a mentally-disabled person. This is done by legal appointment or by the effect of a written law.
Guardian ad litem
A guardian appointed to assist an infant or other mentally incapable defendant or plaintiff, or any such incapacitated person that may be a party in a legal action.
Latin: a court petition ordering that a person being detained must be produced before a judge for a hearing to decide whether the detention is lawful. Habeas corpus was one of the concessions the British monarchy made in the Magna Carta and it still stands as a basic individual right against arbitrary arrest and imprisonment.
A person who is repeatedly convicted and sentenced for crimes over a period of time, even after serving sentences of incarceration, thereby demonstrating a propensity towards criminal conduct. Reformation techniques fail to alter the behavior of the habitual offender. Many countries now have special laws that requiring long-term incarceration, without parole, of habitual offenders as a means of protecting society against an individual who appears unable to comply with the law.
Unsolicited words or conduct tending to annoy, alarm or abuse another person. Any conduct or comment that is known or ought to be known to be unwelcome.” Name-calling (“stupid”, “retard” or “dummy”) is a common form of harassment. (See also sexual harassment.)
Any evidence offered by a witness of which they do not have direct knowledge. Hearsay testimony is a repetition of what others have said to the witness, not a recitation of personal knowledge, and is not allowed. When testifying in court one can only provide information of which one has direct knowledge. Hearsay evidence is also referred to as “second-hand evidence” or as “rumor.” The rumor or hearsay can be repeated in court, but it is not evidence of what occurred, only evidence of what you heard.
A will written entirely in the testator’s handwriting and not witnessed. Some states recognize holograph wills, other do not. Still other states will recognize a will as “holograph” if only part of it is in the testator’s handwriting (the other part being type-written).
All occasions and acts whereby one human being, by act or omission, takes away the life of another. Murder and manslaughter are different kinds of homicides and have varying degrees depending on circumstances and motives. Executing a death-row inmate is another form of homicide, but one which is excusable or justifiable in the eyes of the law. Another excusable homicide is the killing of an armed suspect by a law officer, when a suspect who draws a weapon or shoots at that officer.
During an examination-in-chief, a lawyer is not allowed to ask leading questions of his own witness. However, if that witness openly shows hostility against the interests (or the person) that the lawyer represents, the lawyer may ask the court to declare the witness “hostile”, after which, as an exception of the examination-in-chief rules, the lawyer may ask his own witness leading questions.
A jury which, after full debate and discussion, is unable to agree on a verdict and is deadlocked with differences of opinion that appear to be irreconcilable is said to be a “hung jury”. Since a jury is required to make a unanimous or near unanimous verdict, the result is a mistrial.
A special right that married persons have to keep communications between themselves secret and even inaccessible to a court of law. This privilege may vary from state to state, but it has always been held to be lifted when one spouse commits a crime against the other. See also client-attorney privilege.
An exemption from the normal operation of the law such as a legal duty or liability, either criminal or civil, enjoyed by a person (individual or corporate) For example, diplomats enjoy “diplomatic immunity” which means that they cannot be prosecuted for crimes committed during their tenure as diplomat or a witness may agree to testify only if the testimony cannot be used at some later date during a hearing against that witness.
Legal rights which are intangible such as copyrights or patents.
An incorporeal right which is attached to property and which is inheritable. Easements and profits à prendre (which see) are examples of incorporeal hereditaments as are hereditary titles such as those common in the United Kingdom.
A right or title in property that cannot be made void, defeated, or canceled by any past event, error, or omission in the title. For example, a certificate of title issued under a Torrens land titles system is said to be “indefeasible” because the government warrants that no interest burdens the title other than those on the certificate. This makes long and expensive title searches unnecessary.
A formal accusation returned by a Grand Jury, charging a person with a serious crime. It is on the basis of an indictment that an accused person must stand trial.
Murder of an infant soon after its birth.
A court order which prohibits an activity by a party (restrictive injunction) or compels the party to a specific action (mandatory injunction).
Latin: at the beginning or on the threshold. A motion “in limine” is a motion that is tabled by one of the parties at the very beginning of the legal procedures.
In pari delicto
Latin: both parties are equally at fault. The usual use of this phrase is “in pari delicto, potior est conditio possidentis” meaning that where both parties in a dispute are equally at wrong, the party in possession of the contested property will retain it (i.e. the law will not intervene).
Latin: All legal rights are either in personam or in rem (which see). An in personam right is a personal right attached to a specific person. In rem rights are property rights and enforceable against the entire world.
Latin: All legal rights are either in personam or in rem. In rem rights are proprietary in nature; related to the ownership of property and not based on any personal relationship, as is the case with in personam rights.
A person unable to pay his or her debts as they become due. “Insolvency” is a prerequisite to bankruptcy.
Latin: “among other things”, “for example” or “including”. Legal drafters use this term to precede a list of examples or samples covered by a more general descriptive statement. Sometimes an inter alia list is used to make absolutely sure that users of the document understand that the general description covers a certain element (which was covered in the general description anyway) without, in any way, restricting the scope of the general element to include other things that were not singled out in the inter alia list.
A temporary court order intended to be of limited duration, usually just until the court has had an opportunity of hearing the full case and make a final order.
An addition of verbiage to a document after it has been signed. Such additions are of none effect unless they are initialed by the signatories and, if applicable, witnesses (e.g. wills).
Proceedings taken during the course of, and incidental to, a trial. These decisions intervene after the start of a suit and decide some issue other than the final decision itself. Examples can include procedures or applications made which are to assist a case in preparing its case or of executing judgment once obtained (e.g. garnishment or judicial sale).
An injunction lasting only for the duration of the trial during which the injunction was sought.
A person who, without legal right, runs a business (e.g. without mandatory licenses), or who wrongfully interferes or intercepts another’s business.
A combination of treaties and customs which regulates the conduct of states amongst themselves. The highest judicial authority of international law is the International Court of Justice and the administrative authority is the United Nations.
Latin: between parties.
To die without a will or testamentary document.
Latin: from one living person to another living person. For example, an inter vivos trust is one which the settlor sets up to take effect while he or she is still alive. It can be contrasted with the testamentary trust, which is to take effect only upon the settlor’s death. Another example is the sale of a life estate which can only occur between persons living; i.e. inter vivos.
To take effect, to result; to come into operation.
The law as interpreted from the Koran. Under Islamic law, the religion of Islam and the government are one. There is no separation or church and state. Islamic law is controlled, ruled and regulated by the Islamic religion and purports to regulate all public and private behavior, including personal hygiene, diet, sexual conduct, and child rearing. Islamic law now prevails in countries all over the middle east and elsewhere covering twenty per cent of the world’s population. It is probably best known for deterrent punishment, which is the basis of the Islamic criminal system.
A false boast by someone intended to increase his standing at the expense of another. This formed the basis of an ancient legal petition called “jactitation of marriage” in which a person could be ordered by the courts to cease claims of being married to a certain person when, in fact, they were not married. The tort of slander of title (which see) is a form of jactitation.
Abbreviation for “juris doctor” or “doctor of jurisprudence” and the formal name given to the university law degree in the United States. It is a prerequisite to most bar admission exams.
Joint and several liability
A legal term allowing each party having liability to be sued for the entire amount of damages done by all the parties.
A child custody decision in which both parents share joint legal custody and joint physical custody. This is not common and many professionals have taken to referring to “joint legal custody but sole maternal physical custody” as “joint custody”.
When two or more persons are equally owners of some property. The unique aspect of joint tenancy is that as the joint tenancy owners die, their shares accrue to the surviving owner(s) so that, eventually, the entire share is held by one person. A valid joint tenancy is said to require the “four unities”: unity of interest (each joint tenant must have an equal interest including equality of duration and extent), unity of title (the interests must arise from the same document), unity of possession (each joint tenant must have an equal right to occupy the entire property) and unity of time: the interests of the joint tenants must arise at the same time.
A process whereby a court of law is asked to rule on the appropriateness of an administrative agency or tribunal’s decision. Judicial review is a fundamental principle of administrative law. A distinctive feature of judicial review is that the “appeal” is not usually limited to errors in law but may be based on alleged errors on the part of the administrative agency on findings of fact.
Latin, from Roman law: by right, under legal authority or by the authority of the law. A variation, “juris” means “of right” or “of the law.” See jurisprudence below which means “science of the law.”
A court’s authority to preside over a situation, usually acquired in one of three ways: over acts committed in a defined territory (e.g. the jurisdiction of the Supreme Court of Illinois is limited to acts committed or originating in Illinois); over certain types of cases (the jurisdiction of a bankruptcy court is limited to bankruptcy cases); or over certain persons (a military court has jurisdiction limited to actions of enlisted personnel).
Technically, jurisprudence means the “science of law”. Statutes articulate the rules of law, with only rare reference to actual situations. The application of these statutes to actual cases and facts is left to judges who consider not only the statute but also other legal rules which might be relevant to arrive at a judicial decision; hence, the “science”. Thus, “jurisprudence” has come to refer to case law, or the legal decisions which have developed and which accompany statutes in applying the law against situations of fact.
A group of citizens randomly selected from the general population and brought together to assist justice by deciding which version, in their opinion, constitutes “the truth”, given different evidence by opposing parties.
Latin: word which, in Roman law, meant the law or a right. Also spelt “ius” in some English translations.
Jus spatiandi et manendi
Latin: referring to a legal right of way, and to enjoyment, granted to the public but only for the purposes of recreation or education, such as upon parks or public squares. Some courts have said that a jus spatiandi is a special type of easement.
A state of affairs in which conduct or action is both fair and right, given the circumstances. In law, the paramount obligation to ensure that all persons are treated fairly. Litigants “seek justice” by asking for compensation for wrongs committed against them that will right the inequity such that the balance of “good” or “virtue” over “wrong” or “evil” has been corrected.
The forcible taking and carrying away of someone by force and against his will. This includes unlawfully confining someone for ransom, or as a hostage, or to harm them in any way. See also abduction.
Relationship by blood. Lineal kin are those related in a direct line, such as mother and son. Collateral kin are those descended from a common ancestor, such as brothers with the same father. Next of kin is a term relating to the person most closely related to someone.
To wrongfully take advantage of the time it takes a check deposited in one bank to be collected at another. This time period is called “float”. Kiting allows a person to use funds that are not his own by drawing checks against deposits that have not yet actually cleared the bank.
Knock and announce rule
A rule which allows a peace officer to break into and enter a house to serve a warrant or carry out an arrest. He must first announce his authority and purpose. If he is refused admittance he may then break open a door or window for entry.
To act with knowledge; willfully; consciously. To act knowingly in relation to an offense is to carry out an action with full knowledge that it is done and that it carries a predictable result.
A legal doctrine whereby those who take too long to assert a legal right, lose their entitlement to compensation. When you claim that a person’s legal suit against you is not valid because of this, you would call it “estoppel by laches”.
A land or building owner who has leased the land, the building or a part of the land or building, to another person.
An old English criminal and common law offence covering the unlawful or fraudulent removal of another’s property without the owner’s consent. The offence of theft now covers most cases of larceny. But larceny is wider than theft as it includes the taking of property of another person by whatever means (by theft, overtly , by fraud, by trickery, etc.) if an intent exists to convert that property to one’s own use against the wishes of the owner.
All the rules of conduct that have been approved by the government and which are in force over a certain territory and which must be obeyed by all persons on that territory (eg. the “laws” of Australia). Violation of these rules could lead to government action such as imprisonment or fine, or private action such as a legal judgement against the offender obtained by the person injured by the action prohibited by law. Synonymous to act or statute although in common usage, “law” refers not only to legislation or statutes but also to the body of unwritten law in those states which recognize common law.
A person that has been trained in the law and that has been certified to give legal advice or to represent others in litigation. Also known as a “barrister & solictor” or an attorney.
A question which suggests an answer; usually answerable by “yes” or “no”. For example: “Did you see David at 3 p.m.?” These are forbidden to ensure that the witness is not coached by their lawyer through his or her testimony. The proper form would be: “At what time did you see David?” Leading questions are only acceptable in cross-examination or where a witness is declared hostile.
A special kind of contract between a property owner and a person wanting temporary enjoyment and use of the property, in exchange for rent paid to the property owner. Where the property is land, a building, or parts of either, the property owner is called a landlord and the person that contracts to receive the temporary enjoyment and use is called a tenant.
Real property held under a lease.
A child custody decision which entails the right to make, or participate in, the significant decisions affecting a child’s health and welfare (compare with physical custody and joint custody).
Written and approved laws. Also known as “statutes” or “acts.” In constitutional law, one would talk of the “power to legislate” or the “legislative arm of government” referring to the power of political bodies (eg: house of assembly, Congress, Parliament) to write the laws of the land.
Any legal obligation, either due now or at some time in the future. It could be a debt or a promise to do something. To say a person is “liable” for a debt or wrongful act is to indicate that they are the person responsible for paying the debt or compensating the wrongful act.
Defamation by writing such as in a newspaper or a letter.
A form of construction which allows a judge to consider other factors when deciding the meaning of a phrase or document. For example, faced with an ambiguous article in a statute, a liberal construction would allow a judge to consider the purpose and object of a statute before deciding what the article actually means.
A special permission to do something on, or with, somebody else’s property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass. A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass. Licenses are revocable at will (unless supported by a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land). Licenses which are not based on a contract and which are fully revocable are called “simple” or “bare” licenses. A common example is the shopping mall to which access by the public is on the basis of an implied license.
A property right which remains attached to an object that has been sold, but not totally paid for, until complete payment has been made. It may involve possession of the object until the debt is paid or it may be registered against the object (especially if the object is real estate). Ultimately, a lien can be enforced by a court sale of the property to which it attached and then the debt is paid off from the proceeds of the sale.
A right to use and to enjoy land and/or structures on land only for the life of the life tenant. The estate reverts back to the grantor (or to some other person), at the death of the person to whom it is given. A property right to last only for the life of the life tenant is called the estate “pur sa vie.” If it is for the duration of the life of a third party, it is called an estate “pur autre vie”. The rights of the life tenant are restricted to conduct which does not permanently change the land or structures upon it.
The beneficiary of a life estate.
A unique colleague in a partnership relationship who has agreed to be liable only to the extent of his (or her) investment. Limited partners, though, have no right to manage the partnership. Limited partners are usually just investors or promoters who seek the tax benefits of a partnership
Adjacent, bordering or contiguous.
A person who is a direct descendant such as a child to his or her natural parent.
The selling of all the assets of a debtor and the use of the cash proceeds of the sale to pay off creditors. Lis pendens Latin: a dispute or matter which is the subject of ongoing or pending litigation. Politicians will sometimes refuse to discuss a matter or an issue which is “lis pendens” because they do not want their comments to be perceived as an attempt to influence a court of law.
A form of construction which does not allow evidence extrapolated beyond the actual words of a phrase or document but, rather, takes a phrase or document at face value, giving effect only to the actual words used. Also known as “strict” or “strict and literal” construction. Contrasts with liberal construction (which allows for the input from other factors such as the purpose of the document being interpreted).
A dispute is in “litigation” ( or being “litigated”) when it has become the subject of a formal court action or law suit.
An archaic legal word from the feudal system referring to the actual legal transmission of possession of an object to another. For example, a knight would obtain an estate in land as tenure in exchange for serving in the king’s army for 40 days a year. The king would give exclusive possession of the land, (i.e. “livery”) to the knight. A writ of livery also developed which allowed persons to sue for possession of land under the feudal system. Livery (or “delivery”) of the land was important in completing legal possession or, as it was known in the feudal system, seisin.
A document setting up guidelines for dealing with heroic measures and life-sustaining medical procedures in the eventuality of the signatory’s sudden debilitation. Living wills would, for example, inform medical staff not to provide extraordinary life-preserving procedures on the body if the maker of the document is incapable of expressing himself and is suffering from an incurable and terminal condition.
LL.B., LL.M. or LL.D.
The Latin abbreviations for the three classes of law degrees: the regular bachelor degree in law (LL.B.), the masters degree in law (LL.M.) and the doctorate in law (LL.D.). These are basic prerequisites to admission to the practice of law in many states.
Latin for “the place.” For example, “locus delicti”, the pace where a criminal offense was committed or “loco parentis”, referring to a person who stands in the place of a parent, such as a step-parent in a common law relationship.
Long arm statutes
Each court is bound to a territorial jurisdiction and does not normally have jurisdiction over persons that reside outside of that territory. Long-arm statutes are a tool which gives a court jurisdiction over a person even though the person no longer resides in the territorial limits of the court.
Charter to which King John of England was forced to subscribe on June 12, 1215, in which basic limits were set on the King’s powers. King John had ruled tyrannically and his barons rebelled, committing themselves to war with the crown unless the King agreed to the Charter. It is held to be the precursor of habeas corpus, among other things, for Article 39 of the Magna Carta held that no man shall be “imprisoned, exiled or destroyed … except by lawful judgment of his peers or by the law of the land”.
Referring to the obligation of one person to contribute, in part or in whole, to the cost of living of another person. It is usually expressed in a currency amount per month as in “$450 a month maintenance.” Some countries use the words “support” (spousal or child) or “alimony”.
To commit an illegal action. See also misfeasance and nonfeasance.
A writ commanding an individual, organization (e.g. government), administrative tribunal, or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Accidental homicide or homicide which occurs without an intent to kill and which does not occur during the commission of another crime or under extreme provocation.
A very specific body of law dealing with transportation by water, seamen, and harbors.
The state-recognized, voluntary and exclusive contract for the lifelong union of two persons. Most countries do not recognize polygamous marriages, but marriage between same-sex couples is becoming increasingly recognized.
A unique way to organize a business in which the property is bought by, or transferred to, a trustee (such as a trust company) and the trustee issues trust “units”, which the investors, or their designates, hold as beneficiaries. This is a common way to structure a large real estate purchase.
The legal state of being married. Clerics refer to the “holy” estate of matrimony.
The appointment of a mediator who acts to assist the parties in a dispute in communicating and essentially negotiating a settlement. This is the most popular form of alternative dispute resolution (ADR). Mediation does not involve adjudication of the issues in dispute or the forcing of a compromise; only the parties, of their own volition, can shift their position in order to achieve a settlement. The result of a successful mediation is called a “settlement.” Compare with arbitration.
Abbreviation for “Memorandum of Understanding.” A document which, if meeting the other criteria, can be, in law, a contract. Generally, in the world of commerce or international negotiations, an MOU is considered to be a preliminary document; not a comprehensive agreement between two parties but rather an interim or partial agreement on some elements, in some cases a mere agreement in principle, on which there has been accord. Most MOU’s imply that something more is eventually expected.
Latin for “guilty mind.” Many serious crimes require the proof of “mens rea” before a person can be convicted. In other words, the prosecution must prove not only that the accused committed the offence but that he (or she) did it knowing that it was prohibited; that their act (or omission) was done with an intent to commit a crime.
A person who is legally underage, varying between 21 and 18 years of age. Each state sets an age threshold at which time a person is invested with all legal rights as an adult. For many new adults, the most important rights mean access to places serving alcohol and the right to purchase and consume alcohol, smoke cigarettes, and drive a car. But there are many other legal rights which a minor does not have such as, in some states, the right to own land, to sign a contract or to get married.
The official record of a meeting. Some minutes include a summary (not verbatim) of the discussion along with any resolutions. Other minutes just contain a record of the decisions. Minutes usually start off with the name of the organization, the place and date of the meeting and the name of those persons present. They are prepared by the corporate secretary and signed by either the president or secretary.
The name given to the requirement that police officers, in the U.S.A., must warn suspects upon arrest that they have the right to remain silent; that any statement that they make could be used against them in a court of law; that they have the right to contact a lawyer; and that if they cannot afford a lawyer, one will be provided before any questioning, if so desired. Also known as the “Miranda Rule. If the Miranda warning is not given, any evidence obtained or statement made by the suspect will not be admissible in court. The warning became a national police requirement when ordered by the US Supreme Court in the 1966 case Miranda v. Arizona.
A crime where the punishment might be a fine or prison for less than one year. A misdemeanor is of lesser seriousness than a felony
Improperly doing something which a person has the legal right to do. Compare with malfeasance and nonfeasance.
The naming of a person as a party to a law suit when that person should not have been added. When mis-joinder is asserted, a court will usually accommodate a request to amend the court documents to strike, or substitute for, the name of the mis-joined party. Compare with non-joinder.
A presentation of false and material statements or facts which induces a party to enter into a contract. This is a ground for rescission of the contract.
Any trial which is found to be null and void and of no effect because of some irregularity. It may be a partial trial which comes to a sudden end because of some reason which invalidates it, or it may be a complete trial. In either case, the situation is as if the trial had never occurred. Reasons for a mistrial include a deadlocked jury, the death of a juror, or a serious procedural and prejudicial mistake made at the trial which cannot be corrected.
Facts that tend to show that the defendant may have had some grounds for acting the way he/she did. Such mitigation does not negate an offence or wrongful action. For example, assault caused by provocation is still assault, but provocation may constitute mitigating circumstances and allow for a lesser sentence.
Mitigation of damages
A person who sues another for damages has a responsibility to take every reasonable action to minimize those damages. For example, in a wrongful dismissal suit, the person filing the suit should make efforts to find another job so as to minimize the economic damage on him.
Latin: method of operation. Refers to a criminal’s preferred method of committing crime and can be a basis for including a specific criminal in a list of suspects. For example, a burglar may have a break and enter technique that leaves a long scratch mark on the door. Upon discovery of a burglary with such a mark, law enforcement officials might include this known burglar in the list of suspects because the evidence at the crime scene is consistent with his “modus operandi.”
A half. For example, it can be said that joint tenants hold a moiety in property. In old criminal law, there were “moiety acts” which allowed half of the fine money to be handed over to the informer.
A restriction of trade to only one or a select few companies in which only those companies can trade in a certain area, creating a commercial advantage. Illegal monopolies are secretly built by conspiracy between two or more companies and are prohibited by law. Some monopolies are legal, such as those temporarily created by patents.
A situation, side issue, problem or question which does not have to be decided to resolve the main issues in a dispute. Also called a “moot point”.
A training activity, usually held by law schools, for future lawyers, in which a fictional or hypothetical trial is held.
The temporary suspension of legal action against a person.
An interest given on a piece of land by a mortgagor, in writing, to guarantee to the mortgagee the payment of a debt or the execution of some action. It automatically becomes void when the debt is paid or the action is executed. In some jurisdictions, it entails a conveyance of the land until the debt is paid in full.
The taking of another person’s life, without legal justification or provocation. See also homicide.
A group or race of people that share history, traditions and culture. The United States is comprised of 50 states and several protectorates, such as Puerto Rico. It is common English to use the word “nation” when referring to what is known in law as “states.”
A tenet of international trade agreements whereby nations cannot discriminate against imported goods and must give them the same treatment that they afford domestic or “national” products.
Principles derived from Roman law, which held that some legal principles were “natural” or self-evident and did not require a statutory basis. A word used to refer to situations where the two basic legal safeguards of “audi alteram partem” (the right to be heard) and “nemo judex in parte sua” (no person may judge their own case) apply. These rules govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.
Stand for “non circumvention/non disclosure agreement”. An international trade instrument used in the preliminary stages of a business transaction where the seller and buyer do not know each other, but are brought into contact with each other by one or more intermediaries (also known as brokers or middlemen), to fulfill the transaction. These agreements insure that the intermediaries in the transaction are not circumvented and excluded from the transaction by the buyer and/or seller and/or the other intermediaries. Many trade transactions are chains in which product flows through several intermediaries like this: seller-broker-broker-broker-buyer. Those brokers in the middle use NCNDs to insure that they are not circumvented by anyone else in the chain; also, to insure that information on the other parties in the chain is not disclosed to outside parties. They are valid for a specified term; usually two years.
The failure to act as a reasonable person would be expected to act in similar circumstances (i.e. “negligence”) will give rise to compensation. All persons have a duty to insure that their actions do not cause harm to others. Not only are people responsible for the intentional harm they cause, but their failure to take care, if it causes injury to another, can give rise to a liability suit under tort. This failure, or negligence, is always assessed having regard to the circumstances and to the standard of care which would reasonably be expected of a person in similar circumstances. Between negligence and the intentional act there lies yet another, more serious type of negligence, called gross negligence. Gross negligence is any action or an omission in reckless disregard of the consequences to the safety or property of another. See also contributory negligence and comparative negligence.
Communication on a matter of disagreement between two parties by first listening to each party’s’ perspective and then attempting to arrive at a resolution by consensus.
Nemo judex in parte sua
Latin: “no person may judge their own case”. A fundamental principle of natural justice, stating that no person can judge a case in which he or she is party. May also be called “nemo judex in sua causa” or “nemo debet esse judex in propria causa”.
Next of kin
The nearest blood relative of a deceased. The expression has come to describe those persons most related to a dead person and therefore likely to inherit the deceased’s property.
Latin for “I will not defend it.” Used primarily in criminal proceedings whereby the defendant declines to refute the evidence of the prosecution. In some jurisdictions, this response by the defendant has same effect as a plea of guilty. It is not the same as a plea of not guilty, nor does it overtly admit the claims of the prosecution.
Non est factum
Latin for “not his deed”. A special defense in contract law to allow a person to avoid having to respect a contract that she or he signed because of certain reasons, such as a mistake as to the kind of contract. For instance, if a person signs away the deed to a house, thinking that the document signed was only a guarantee for another person’s debt, he might be able to plead non est factum in a court and on that basis get the court to void the contract.
The failure to do something that a person should be doing. See also malfeasance and misfeasance.
The failure to include a person who should have been made a party to legal proceedings. This is usually addressed by asking the court to amend documents and including the forgotten party to the proceedings. It is the opposite of mis-joinder.
Also known as “notary public”: a legal officer with specific judicial authority to attest to legal documents, usually with an official seal. Most countries do not have notaries, vesting administrative legal authority in lawyers or court officers.
In spite of; even if; without regard to or impediment by other things.
To substitute a new debt for an old debt thereby canceling the old debt. See also subrogation.
A contract-law term which stands for those agreements which are without consideration. An example would be a unilateral undertaking, which may bind a person morally, but would not be binding under contract law in those jurisdictions which still require consideration.
Excessive or unlawful use of one’s property to the extent of unreasonable annoyance or inconvenience to a neighbor or to the public. Nuisance is a tort.
Nunc pro tunc
Latin: “now for then”. It refers to the doing of something late (after it should have been done in the first place) with effect as if it had been done on time.
A religious or solemn affirmation to tell the truth or to take a certain action.
A Latin term: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of “stare decisis”. May also be referred to as “dicta” or “dictum.”
That person who receives the benefit of someone else’s obligation; that “someone else” being the obligor. Also called a “promisee”.
A person who is contractually or legally committed or obliged, to provide something to another person. The recipient of the benefit is called the obligee. Also known as the “promisor.”
In the context of criminal law a term used to describe a publication which is illegal because it is morally corruptive. The common law has struggled with this word as society evolves towards greater tolerance of alternative sexual behavior. Historically, it included any lewd material which had no apparent social value, which was offensive to contemporary community standards of decency, and even material which tended to invoke impure sexual thoughts. All of these measurements are very subjective and the community standard of obscenity is frequently at odds with the right of free speech.
Any act which tends to impede or thwart the administration of justice. Examples include trying to bribe a witness or juror or providing law enforcement officers with information known to be false.
A crime; any act which contravenes the criminal law of the state in which it occurs.
An explicit proposal to contract which, if accepted, completes the contract. An accepted offer binds both the person that made the offer and the person accepting the offer to the terms of the contract. See also “acceptance”.
A person whose occupation consists of investigating customer complaints against his or her employer. Many governments have ombudsmen who will investigate citizen complaints against government services.
A draft law before a legislature which contains more than one substantive matter, or several minor matters which have been combined into one bill, ostensibly for the sake of convenience. In reality, such bills sometimes contain unpopular or less valuable matters which it is hoped will be passed because of the value of other parts of the bill. The omnibus bill is an “all or nothing” tactic.
Latin:” the burden”. A term usually used in the context of evidence. The onus of proof in criminal cases lies with the state, in that it is the state that has the burden of proving beyond reasonable doubt. In civil cases, the onus of proof lies with the plaintiff who must prove his case by balance of probabilities. So “onus” can refer both to the party with the burden, and to the scope of that burden, the latter depending whether the context is criminal or civil.
An agreement or contract which does not have an ending date but which will continue for as long as the conditions identified in the agreement exist.
A formal written direction given by a member of the judiciary; a court decision without reasons.
An executive decision of a government which is often detailed and not, as would be a statute, of general wording or application. Unlike a statute, it has not been subjected to a legislative assembly. This term is in disuse in many jurisdictions and the words “regulations” or “bylaws” are preferred.
A person who has lost one or both natural parents.
An agreement between two litigants to settle a matter privately before a court has rendered its decision.
A person who is neither a lawyer nor is not acting in that capacity but who provides a limited number of legal services. Each state differs in the authority it gives paralegals in exercising what traditionally would be lawyers’ work.
A pardon is a government decision to allow a person who has been convicted of a crime, to be free and absolved of that conviction, as if never convicted. Typically used to remove a criminal record against a good citizen for a small crime that may have been committed during adolescence or young adulthood. The procedures vary from one state to another, but the request for a pardon usually involves a lengthy period of time of impeccable behavior and a reference check. Generally speaking, the more serious the crime, the longer the time requirement for excellent behavior. In the USA, the power to pardon for federal offenses belongs to the President.
Latin: A British common law creation whereby the courts have the right to make unfettered decisions concerning people who are not able to take care of themselves. For example, a court can make custody decisions regarding a child or an insane person, even without statute law to allow them to do so, based on their residual, common law-based parens patriae jurisdiction.
Latin for “of equal fault.” If two parties complain to a judge of the non-performance of a contract by the other, and the judge finds that they were equally at fault in causing the contract’s breach, the judge could refuse to provide a remedy to either of them because of “pari delicto”.
Latin: Equitably and without preference. A term often used in bankruptcy proceedings where creditors are said to be “pari passu” meaning that they are all equal and that distribution of the assets will occur without preference between them.
An early release from incarceration in which the prisoner promises to heed certain conditions. The conditions are usually set by a parole board and under the supervision of a parole officer. Violation of any of those conditions would result in the return of the person to prison.
Killing one’s father or another family member or close relative.
A business organization of two or more persons carrying out business together. Each partner is fully liable for all the debts of the enterprise but they also share the profits exclusively. Many states have laws regulating partnerships and may, for example, require some form of registration and allow partnership agreements. One of the basic advantages of partnerships is that they tend to allow business losses to be deducted from personal income for tax purposes (see also limited partner).
Par value shares
Shares issued by a company which have a minimum price. Contrast with shares which are without par value or “non par value shares” which may be sold at whatever price the company’s board of directors decides.
An exclusive privilege granted to an inventor to make, use, or sale an invention for a set number of years. In effect, the state grants a temporary monopoly to an inventor through the issuance of a patent, as a financial incentive to potential inventors.
Being a father. “Paternity suits” are launched when a man denies being the father of a child born out of wedlock. The new technology of DNA testing can establish paternity, thus obliging the father to provide child support.
The person to whom payment is addressed or given. In family law, the term usually refers to the person who receives or to whom support or maintenance is owed. In commercial law, the term refers to the person to whom a bill of exchange is made payable. On a regular check, the space after the words “pay to the order of” identifies the payee.
The person who is making the payment(s). Again, in the context of family law, the word would typically refer to the person who is paying support or maintenance. In commercial law, the word refers to the person who makes the payment on a check or bill of exchange.
One who suffers from a sexual perversion, pedophilia, in which children are preferred as sexual partners.
An electronic surveillance device which attaches to a phone line and which registers every number dialed from a specific telephone. This surveillance device is not as effective as wire-tapping.
Latin: during litigation. For example, if the validity of a will is challenged, a court might appoint an administrator pendente lite with limited powers to do such things as may be necessary to preserve the assets of the deceased until a hearing can be convened on the validity of the will. Another example is an injunction pendente lite, to last only during the litigation and, again, designed simply to preserve something until the decisive court order is issued.
Water which seeps or filters through the ground without any definite channel and is not part of the flow of any waterway. The best example is rain water.
An intentional lie given while under oath or in a sworn affidavit.
Testimony or evidence taken when it is feared that the person with that evidence may soon die or disappear and that this person’s evidence, if recorded, could then be used in the future to prevent a possible injustice or to support a future claim of property.
Forever; of unlimited duration. Rights that are to last forever are said to hinder commerce as an impediment to the circulation of property. There is a strong bias in the law against things that are to last in perpetuity.
An entity with legal rights and existence including the ability to sue and be sued, to sign contracts, to receive gifts, to appear in court either by themselves or by lawyer and, generally, other powers incidental to the full expression of the entity in law. This definition includes not only individuals, who are “persons” in law unless they are minors or under some kind of other incapacity such as a court finding of mental incapacity but also includes business organizations that have been formally registered, such as partnerships, corporations or associations.
In the law of wills, the general name given to the person who administers the estate of a deceased person. There are two kinds of personal representatives: an administrator who is appointed by a court if a person dies without a will (intestate) and an executor if a personal representative is named in a will.
The formal, written document submitted to a court, which describes an injustice of some kind and asks the court for redress. Petitions set out the facts, identify the law under which the court is being asked to intervene, and end with a suggested course of action for the court to consider (e.g. payment of damages to the plaintiff). Because of the complexity of most legal forms, petitions are normally filed by lawyers but most states will allow citizens to file petitions provided they conform to the court’s form. Some states do not use the word “petition” and, instead, might refer to an “application”, a “complaint” or the “writ.”
A petty or underhanded lawyer; an attorney who sustains a professional livelihood on disreputable or dishonorable business. The word has also taken on a common usage definition referring to anyone prone to quibbling over details.
A minor crime for which the punishment is usually just a small fine or short term of imprisonment. See also misdemeanor and felony.
A child custody decision granting the right to organize and administer the day to day residential care of a child. This is usually combined with legal custody.
To object publicly, on or adjacent to the employer’s premises, to an employer’s labor practices, goods or services. The most common form of picketing is patrolling with signs.
The person who brings a case to court; who sues. May also be called “claimant”, “petitioner” or “applicant”. The person being sued is generally called the “defendant” or the “respondent.”
Negotiations during a criminal trial between an accused person and a prosecutor. The accused agrees to admit to a crime (sometimes a lesser crime than the one set out in the original charge), thus avoiding the expense of a public trial, in exchange for which the prosecutor agrees to ask for a sentence more lenient than would have been recommended if the case had proceeded to full trial. Judges are not bound by plea bargains, although, as past lawyers themselves, they are generally aware of plea bargains and a reasonable recommendation of a prosecutor on sentencing is always heavily considered.
That part of a party’s case in which he or she formally sets out the facts and legal arguments which support that party’s position. Pleadings can be in writing or they can be made verbally to a court, during the trial.
To kill or take an animal or fish from the property of another without permission. Hunting with permission on another’s land is not poaching.
Being married to more than one person at the same time. Illegal in most countries.
A lie-detector machine. It works by recording variations in blood pressure, body temperature and respiration of a subject as he answers questions.
A rule of contract law making an exception to the general rule that an acceptance is only created when communicated directly to the offeror. When the acceptor places the acceptance in the mail box for return mail the acceptance is binding and the contract is said to be perfected even if, in fact, it never reaches the offeror.
Power of attorney
A document which gives a person the right to make binding decisions for another, as an agent. A power of attorney may be specific to a certain kind of decision or general, in which the agent makes all major decisions for the person who is the subject of the power of attorney. The person signing the power of attorney is usually referred to, in law, as the donor and the person that would exercise the power of attorney, the donee.
Præcipe or precipe
A Latin term which used to refer to the actual writ that would be presented to a court clerk to be officially issued on behalf of the court. Now the term mostly refers to the covering letter from the lawyer (or plaintiff) which accompanies and formally asks for the writ to be issued by the court officer. The precipe is kept on the court file, but does not accompany the writ when the latter is served on the defendant.
Words that express a wish or a desire rather than a clear command. They are often found in trusts or wills and cause great difficulties when courts try to find the real intention of the settlor or testator.
A case establishing legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court. Precedents form the basis of the theory of stare decisis, which prevents “reinventing the wheel” and allows citizens to have a reasonable expectation of the legal solutions which apply in a given situation.
A share in a company having a special right or privilege attached to it, distinguishing it from the company’s common shares. Most commonly that special right is a preference over holders of common shares when dividends are declared. Another possible right is for the preferred shares to be redeemable at the option of either the holder or the company. Still another might be to disallow voting rights to preferred shareholders. Depending on the laws in each state, there may be no limit to the qualifications a company can attach to preferred shares.
A word describing the strength or weight of evidence such that it persuades a judge or jury to lean toward one side as opposed to the other during the course of litigation. In many states, criminal trials require evidence beyond a reasonable doubt, but civil trials require only a preponderance of the evidence. The judge or jury will perceive the evidence of one side as outweighing the other based on which side has the most persuasive or impressive evidence. The strength or “weight” of evidence is not decided by the sheer number of witnesses but by their credibility, and their testimony is given weight accordingly. The side with the preponderance of evidence wins the case.
A method of acquiring rights through the silence of the legal owner and known in common law jurisdiction as “statute of limitations.” When used in a real property context, the term refers to the acquisition of property rights, such as an easement, by long and continued use or enjoyment. The required duration of continued use or enjoyment, before legal rights are enforceable, is usually written into a state’s law known as “statute of limitations.”
Presumption of advancement
A presumption in trust, contract and family law which suggests that property transferred from a parent to a child, or spouse to spouse, is a gift and would defeat any presumption of a resulting trust.
A Latin term which means “on the face of it” or “at first sight”. Law-makers will often use this as a device to establish that if a certain set of facts are proven, then another fact is established “prima facie”. For example, proof that a letter was mailed is prima facie proof that it was received by the person to whom it was addressed, and such prima facie evidence will be accepted as such by a court unless proven otherwise.
An agent’s master; the person from whom an agent has received instruction and to whose benefit the agent is expected to perform and make decisions.
Law which regulates the relationships between individuals. Examples include family, commercial and labor law because the focus of these kinds of law is the relationships between individuals, or between corporations or organizations and individual, with the government as a bystander. They are the counterpart to public law.
A special and exclusive legal advantage or right, such as a benefit, exemption, power or immunity. An example would be the special privileges that some persons have in a bankruptcy to recoup their debts from the bankrupt’s estate before other, non-privileged creditors.
The formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will. A “probate court” is a name given to the court that has this power to ratify wills.
A form of punishment given out as part of a sentence. Instead of jailing a person convicted of a crime, a judge will order that the person report to a probation officer regularly and according to a set schedule. Disobedience of the probate order is a criminal offence and is cause for being immediately jailed. Someone “on probation” is presently under such a court order. The probation orders may have special conditions attached to them, such as not to leave the city, drink alcohol, consume drugs, not to go to a specific place or contact a certain person.
Provided for free. Pro bono publico means “for the public good.”
Profit à prendre
A servitude which resembles an easement and allows the holder to enter the land of another and to take some natural produce such as mineral deposits, fish or game, timber, crops or pasture.
As a matter of form; in keeping with a form or practice. Something is done “pro forma” because it facilitates future dealings, even if it is not essential. For example, an invoice might be sent to a purchaser even before the goods are delivered as a matter of business practices.
A legal restriction against the use of something or against certain conduct. For example, in the 1920s, both the USA and Canada enacted liquor prohibitions, outlawing the manufacture or use of alcoholic beverages.
A person who is to be the beneficiary of a promise, an obligation or a contract. Synonymous to “obligee.”
The person who has become obliged through a promise (usually expressed in a contract) towards another, the intended beneficiary of the promise being referred to as the promisee. Also sometimes referred to an “obligor.”
An unconditional written and signed promise from the payor to a payee. It promises to pay a certain amount of money, on demand or at a certain defined date in the future. It differs from a bill of exchange, in that a promissory note is not drawn on any third party holding the payor’s money;
Legally, property is properly defined as a collection of legal rights over a thing, rather than a thing which belongs to someone and over which a person has total control. These rights are usually total and fully enforceable by the state or the owner against others. It has been said that “property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases.” Property had no relevance before laws were written and enforced, possession was all that mattered. Property differences can be classified in many ways, the most common being between “real property” or “immoveable property” (real estate such as land or buildings) and “chattel”, or “moveable” (things which are not attached to the land such as a bicycle, a car or a hammer); and between public (property belonging to everybody or to the state) and private property.
Nearness in place; close by. Also used to describe relationships as synonymous for “kin.”
Latin: As a possessor. For example, a person may possess a thing but not own it, and still may exercise certain rights over it “pro possessore”.
To offer a document as being authentic or valid. Used mostly in the law of wills; to propound a will means to take legal action, as part of probate, including a formal inspection of the will, by the court.
Latin: to divide proportionate to a certain rate or interest. For example, in a company with 400 shareholders, 100 with 25% and 300 with 75% of the shares, if the company received a gift of $10,000 and desired to split it “pro rata” among the shareholders, the shareholders with 25% of the shares would receive $25 and the 75% shareholders, $75. Proprietor Owner.
Latin: in one’s personal behalf. Contrast with pro socio.
Latin: on behalf of a partner; not on one’s personal behalf.
To bring judicial proceedings against a person and to administer them until the conclusion of the court proceedings. Lawyers are hired by the government to administer the prosecution of criminal charges in the courts.
A document by a corporation setting out the material details of a share or bond issue and inviting the public to invest by purchasing these financial instruments.
A person who offers sexual intercourse for hire.
Latin: something done temporarily only and not intended to be permanent.
A right signed over to an agent. Proxies are used frequently at annual meetings of corporations where the right to exercise a vote is “proxied” from the shareholder to the agent.
Works in any medium that are not copyright protected under copyright law and are therefore free for all to use without permission. This can include works that were originally non-copyrightable (such as ideas, facts or names); copyrights that have been lost or expired; copyright owned or authored by the federal government (federal documents and publications are not copyrighted and so are public domain); and any works which have been specifically granted to the public domain.
Laws regulating (1) how the government is structured and administrated; (2) how the government conducts itself in its relations with its citizens; (3) the responsibilities of government employees; and (4) the government’s relationships with foreign governments. Criminal and constitutional law are both examples of public law. Private law is law which regulates the private conduct between individuals, without direct involvement of the government. The line between public and private law is sometimes very hard to draw. For example, an unsolicited attack on one’s person would constitute a crime for which the government would prosecute under criminal law, which is public law. However, under private law it would also be a situation in which there would be a private legal action possible by the injured party under tort law.
Special and highly exceptional damages which are an exception to the rule that damages are to compensate not to punish. They are ordered by a court against a defendant when the act or omission which caused the suit, was of a particularly heinous, malicious or highhanded nature. Each jurisdiction sets its own threshold for the amount allowable. Generally, punitive damages are used in intentional torts such as rape, battery or defamation. In some countries, and in certain circumstances, punitive damages might even be available for breach of contract cases but, again, only for the exceptional cases where the court wants to give a strong message to the community that similar conduct will be severely punished. The term “exemplary damages” is used in some jurisdictions, and there is an ongoing legal debate whether there is a distinction to be made between the two and even with the concept of aggravated damages.
Latin: amount or extent.
Latin for “as much as is deserved.” A legal principle under which a person should not be obliged to pay, nor should another be allowed to receive, more than the value of the goods or services exchanged.
A term referring to decisions made by administrative tribunals or government officials to which the rules of natural justice apply. In judicial decisions, the principles of natural justice always apply, but between routine government policy decisions and the traditional court forums lies a hybrid, sometimes called a “tribunal” or “administrative tribunal” and not necessarily presided over by judges. This hybrid operates as a government policy-making body at times but also exercises a licensing, certifying approval or other adjudication authority which is “judicial” because it directly affects the legal rights of a person. Some law teachers suggest that there is no such thing as a “quasi-judicial” decision or body; the body or decision is either judicial or not.
Quid pro quo
Latin: “something for something”. The giving of something having value in exchange for a different thing of equal value.
The number of people who must be present at a meeting before business can be conducted. Without a “quorum”, decisions are invalid. Many organizations have a quorum requirement to prevent decisions being taken without a majority of members present. Typically, a quorum is one more than half of those who are members.
A Latin term: refers to that special legal procedure taken to stop a person or organization from doing something for which it may not have the legal authority, by demanding to know by what right the controversial authority is exercised.
Money paid to have a kidnapped person released.
Originally, forced sex with a woman, other than a wife, without her consent. This basic definition is changing to include sex with a minor (with or without consent; also known as statutory rape), sex with a man without his consent, and sex by force within marriage.
Immoveable property such as land or a building or an object that, though at one time a chattel (which see), has become permanently affixed to land or a building.
A “presumption means that if certain facts are proven, then another fact can be taken for granted by the judge (or jury). Most presumptions are “rebuttable”. The person against whom the presumption is made may present evidence to the contrary, thereby rebutting the presumption, which has the effect of nullifying it. At this point, the person that tried to use the presumption is deprived of the advantage of “free” evidence and now must present evidence to support the fact which might have been proven by the presumption.
To buy back; when a vendor later buys the property back. A right of redemption gives the vendor the right to buy back the property. In some jurisdictions where a mortgage transfers title to the lender until the mortgage is paid off, the “buying back” of the property is known as redemption.
An informer; a person who has supplied the facts required for a criminal prosecution or a civil suit. In criminal prosecutions in some states, this would be indicated by the use of the expression ex. rel., as in The State of California ex. rel. Robert Smith v. George Doe.
A right to future enjoyment or ownership of real property; the “left-over” after property has been conveyed first to another party. A remainder interest is what is left over after a life estate has run its course. Contrary to a reversion (which see), a remainder does not go to the grantor or his (or her) heirs.
Abbreviation for “reciprocal enforcement of maintenance orders” and the name of the international system of recognition, registration and enforcement of child and spousal support orders between countries which have agreed, between themselves, to enforce each other’s maintenance orders. Originally created by England, the international REMO system now spreads over many countries. In the USA, the system is known as UIFSA or URESA.
The consideration paid by a tenant to a landlord in exchange for the exclusive use and enjoyment of land, a building or a part of a building. Usually, rent is paid in money and at regular intervals, such as the first of every month. The word has also come to be used as a verb, as in to “rent an apartment”, although the proper legal term would be to “lease an apartment.”
A legal action taken to reclaim goods which have been distrained, or held by a landlord as collateral. See also distraint.
To abrogate or cancel a contract, so that both parties are in the same position they would have been in had there been no contract. Rescission can occur in one of two ways: either a contract can be set aside (rescinded) because of some defect in its formation (such as misrepresentation, duress or undue influence); or it can be set aside by joint agreement by the parties, for example if they reach a new agreement.
Latin for “things done.” A peculiar rule, used mostly in criminal cases, which allows hearsay if the statement is made during the excitement of the litigated event. For example, the words “stick ’em up!” used during an armed robbery would be admissible in evidence under the “res gestae” rule. So, too, would spontaneous statements made by the defendant during or right after the crime. Some laws even allow “res gestae” statements to be introduced in evidence in special kinds of prosecutions, such as a statement made by a child to another person in a child sexual abuse case. Such a statement may be allowed as evidence even though, technically, it offends the rule against hearsay. This is to recognize the trauma of having a child testify in open court on the subject of her or his abuse. “Res gestae” evidence usually requires a “voir dire” (which see) hearing before it is admissible unless the defense allows it to be put on the trial record unchallenged.
Res ipsa loquitur
A word used in tort referring to situations in which negligence is presumed on the defendant since the object causing injury was in his or her control. This is a rebuttable presumption, since it may be possible to show that the event was an inevitable accident and had nothing to do with the defendant’s responsibility of control or supervision. An example of “res ipsa loquitur” would be getting hit by a rock which flies off a passing dump truck. The event itself imputes negligence (“res ipsa loquitur”) but could be defeated if the defendant can show that the event was a total and inevitable accident.
Latin: A matter which has already been conclusively decided by a court.
Synonymous with defendant. The party that “responds to” a claim filed in court against them by a plaintiff. It can also refer to the party who wins at the first court level but who must then respond to an appeal launched by the party that lost the case at the first court level (upon appeal, this latter person is called the appelant).
Restitutio in integrum
Latin for restitution to the original position. In contract law, the party injured by a breach of contract may ask the court to reverse the contract and revert the parties to their respective positions before the contract was accepted. If the court finds that “restitutio in integrum” is not possible because of actions or events occurring since the date of acceptance, then the court may order that damages be paid instead.
Under ancient English common law, when a party enforced a court judgment which was overturned on appeal, the appellant could ask the appeal court for “restitution”, or financial compensation that placed the appellant in the same position as if the original judgment had not been enforced. A new strain of common law has developed also called “restitution”, closely associated with unjust enrichment. In this case, a person who is deprived of something of value belonging to them can ask a court to order “restitution”. The best example is asking a court to reverse or correct a payment made in error.
A trust that is presumed by the court from certain situations. The court presumes an intention to create a trust; the law assumes that the property is not held by the right person and that the possessor is only holding the property “in trust” for the rightful owner. In constructive trusts, the courts do not presume an intention; they simply impose a trust from the facts.
A contract between a lawyer and client, wherein the lawyer agrees to represent and provide legal advice to the client, who promises to pay. The signed retainer begins the client-lawyer relationship from which flow many responsibilities and duties, primarily on the lawyer, including the duty to provide accurate legal advice; to monitor limitation dates; and to not allow any conflict of interest with the relationship with the client.
A future interest left in a transferor of property, or his (or her) heirs; a reservation in a real property conveyance such that the property reverts back to the original owner upon the occurrence of a certain event. For example, Jim gives land to his church to build a new church edifice, with the provision that if the church ceases to use the building, the land and building revert to the giver or his heirs. Differs from a remainder in that a remainder takes effect by an act of the parties involved. A reversion takes effect by operation of the law. Nor is a reversion a “left-over” as is a remainder. Rather, it reverts the entire property.
Right of first refusal
A right given to a person to be the first to be offered the designated object if it is ever to be offered for sale.
Special rights of people who own land that runs into a river bank (a “riparian owner” is a person who owns land that runs into a river). While not an ownership right, riparian rights include the right of access to, and use of the water for domestic purposes (bathing, cleaning and navigating). The extent of these rights varies from country to country and may include the right to build a wharf outwards to a navigable depth or to take emergency measures to prevent flooding.
Rule against perpetuities
A common law rule that prevents suspension of the transfer of property for more then 21 years or a lifetime plus 21 years. If a will, for example, proposes the transfer of an estate at some future date, that is either more than 21 years after the death of the testator or that is for the life of a person identified in the will plus 21 years, the transfer is void. Statute law exists in many jurisdictions which supersedes the common law rule.
A word with two contradictory meanings. To “sanction” can mean to ratify or to approve but it can also mean to punish. The “sanction” of a crime refers to the actual punishment, usually expressed as a fine or jail term.
A special criminal law option available in medieval times to persons who had just committed, or been accused of, a crime, allowing them to seek refuge in a church or monastery for a proscribed period of time, usually 40 days. Even within sanctuary, there were very stringent rules. The fugitive had to remain within the walls of the sanctuary and in some cases had to stay within a specific area of the building. At the time sanctuary ended he was forced to abandon his or her oath to the king and might be allowed a short period of time to leave the country. Or he might have to escape by night and hope that he could flee the country without being captured. The fugitive was considered to be “dead”, his land was forfeited to the King and his spouse considered a widow. If he refused to renounce his oath, he could be starved out of the sanctuary. Henry VIII of England even took to branding them with a hot iron before they left the country just in case they tried to return; they could then be quickly spotted and arrested. Sanctuary was abolished from the common law in England in1624 and, in France, at the time of the Revolution. The principle of sanctuary continues today, in somewhat altered form, as diplomatic asylum under international law.
Latin for knowledge. In legal situations, the word is usually used to refer to “guilty knowledge”. For example, owners of vicious dogs may be liable for injuries caused by these dogs if they can prove the owner’s “scienter” (i.e. that the owner was aware, before the attack, of the dog’s vicious character).
A court order (i.e. signed by a judge) giving the police permission to enter private property in order to search for evidence of the commission of a crime, for the proceeds of crime, or for property that the police suspect may be used to commit a crime. These court orders are only obtained on the basis of a sworn statement by the requesting law enforcement officer and will precisely describe the place to be searched and, in some cases, the exact property being sought.
The legal possession of property. In law, the term refers more specifically to the ownership of land by a freeholder. For example, an owner of a building can have seisin, but a tenant cannot, because while the tenant may have possession, he does not have the legal title in the building.
The punishment given to a person who has been convicted (i.e. found to be guilty) of a crime. It may be time in jail, community service, a fine, and/or a period of probation.
The taking of someone’s property by court officers or into the possession of a disinterested third party until the outcome of a trial to decide ownership of that property. Sequestration can be voluntary, by deposit, or involuntarily, by seizure.
The land which suffers or has the burden of an easement.
From Roman law, referring to rights of use over the property of another; a burden on a piece of land causing the owner to suffer access by another. An easement is type of servitude as is a profit á prendre.
The person who actually creates a trust by donating property to be managed and administered by a trustee but from which all profits would go to a beneficiary. The law books of some countries refer to this person as a “donor.”
A term used in human rights legislation and referring primarily to unsolicited words or conduct related to sex or gender which tend to annoy, alarm, or abuse another person in employment situations, thereby detrimentally affecting the working environment. The most overt variation of sexual harassment is the quid pro quo offer of work favor in exchange for sexual favor.
Traditionally, penetration of a man’s penis into a woman’s vagina. The term has gradually been expanded to include other forms of sexual relationship.
A portion of a company bought by a transfer of cash in exchange for a certificate, called a common share or preferred share, the certificate constituting proof of share ownership. Those owning shares in a company are called “shareholders”. A shareholder is not liable for the debts or other obligations of the company except to the extent of any commitment made to buy shares. The two other benefits of shares include a right to participate in profits (through dividends) and the right to share the residue of assets of the company, once liabilities have been paid off, if it is ever dissolved.
A contract between the shareholders of the company and the company itself, in which certain things, usually the purview of the board of directors, are detailed. The shareholder agreement will also, typically, control inflows to the company (purchase of shares), how profits are to be distributed, dispute resolution, and what to do if a shareholder dies.
A person who invests in a company or partnership, not taking part in administering or directing the organization, only sharing in the profits or losses.
Adjourned with no future date of meeting or hearing given. A court that adjourns sine die is essentially stating that it never wants to hear the case again and thus dismissing the case. A meeting which adjourns sine die simply has not set a date for its next meeting.
Verbal or spoken defamation; opposed to libel, which is written defamation.
Slander of title
Intentionally casting aspersion on someone’s property, including real property, a business, or goods (the latter might also be called “slander of goods”). A form of jactitation. To intentionally state that a house is built badly or is on unsafe ground, in order to prevent its sale or lower the price, is a slander of title.
Unpaid servitude, in which one person (called “master”) has absolute power, including of life and liberty, over another (called “slave”). The slave has no freedom of action except within limits set by the master, no rights to the fruits of his own labor, is considered to be the property of the master (chattel), and can be sold, given away or killed. Slavery was once very common in the world but is now illegal in most countries, although still surprisingly prevalent.
A regular court which has simplified rules of procedure and process to deal with claims of a lesser value. This allows for expedited hearings in the many jurisdictions which have established small claims courts. Because of their structure and reliance on deformalized proceedings, representation by lawyer is not required or encouraged. Some typical distinctive characteristics of small claims courts include the ability to serve by regular mail and to seize both a court and an adversary at far less cost than in ordinary courts.
A term of the feudal system which referred to the tenure which was exchanged for certain goods or services which were not military in nature. Socage is often described as “free and common socage” although the “free and common” qualification is now of a purely historical significance.
Synonymous with buggery and referring to “unnatural” sex acts, including copulation, either between two persons of the same sex or between a person and an animal (the latter act is known as “bestiality”). Most countries outlaw bestiality but homosexual activity is gradually being decriminalized.
A term more common to England than the United States. A lawyer that restricts his or her practice to the giving of legal advice and does not normally litigate. In England and some other Commonwealth jurisdictions, a legal distinction is made between solicitors and barristers, the former with exclusive privileges of giving oral or written legal advice, and the latter with exclusive privileges of preparing and conducting litigation in the courts. In other words, solicitors don’t appear in court on a client’s behalf and barristers don’t give legal advice to clients. In England, barristers and solicitors work as a team: the solicitor would typically make the first contact with a client and if the issue cannot be resolved and proceeds to trial, the solicitor would transfer the case to a barrister for the duration of the litigation. In the United States, lawyers, also referred to as attorneys, can litigate or give legal advice
A technical word for the monarch (king or queen) of a particular country as in “the Sovereign of England is Queen Elizabeth.” The other meaning of the word is to describe the supreme legislative powers of a state: that they are totally independent and free from any outside political control or authority over their decisions.
A child custody decision giving parental care to both parents but on a revolving basis, such as every other month. The child will be passed back and forth between the parents according to a schedule set up by the court. Split custody is very rare (for example, only 5% of all custody orders in the USA) because it works against consistent upbringing decisions for the child. Also known as “divided custody” although the latter concept is mostly used to describe split custody over greater periods of time such as alternate years with each parent.
A term of parliamentary law referring to those committees which have a continued existence and are not related to the accomplishment of a specific, once-only task as are ad hoc or special committees. Standing committees generally exist as long as the organization to which they report. Budget and finance or nomination committees are typical standing committees of a larger organization.
Latin: A binding precedent; must be followed. A basic principle of the law whereby once a decision (a precedent) on a certain set of facts has been made, the courts will apply that decision in cases which subsequently come before it embodying the same set of facts.
A term of international law: those groups of people which have acquired international recognition as an independent country and which have four characteristics; permanent and large population with, generally, a common language; a defined and distinct territory; a sovereign government with effective control; and a capacity to enter into relations with other states (i.e. recognized by other states). The USA, Canada and China are examples of states. States are the primary subjects of international law. The United Nations is comprised of all the states of the world. Some large states have subdivided into smaller units each having limited legislative powers normally restricted to subjects which are more properly regulated at a local, rather than a national level. Thus, the states of the USA are not really “states” under international law. It is common for the general public and English dictionaries to use the word “nations” to refer to what international law calls “states.”
The written laws approved by legislatures, parliaments or houses of assembly (i.e., politicians). Also known as “legislation”.
A definition of rape defined by statute rather than common law. It includes wider definitions to reflect modern values. The common law definition of rape is limited to sex without consent and with a woman, and only where the victim is not the wife of the rapist. Many states have enacted laws for statutory rape which include under the charge of rape, sex with a minor even if done with the minor’s consent; sex without consent regardless of whether the victim is male or female; and sex without consent regardless of the matrimonial bond between victim and rapist.
A trust created by a statute, usually temporary in nature and serving the purpose of bridging ownership of property to benefit a certain class of individuals which the statute is designed to protect. Some examples are: the temporary trusts that the law of some states impose on the executor of an estate; the holding and administration of tax or other pay deductions (including vacation pay) by employers; the trust accounts of lawyers; and the statutory trust on money paid for a construction project on behalf of any person who might have a construction lien on the property.
Latin: the offspring of a person; his or her descendants. For example, inheriting per stirpes means having a right to a deceased’s estate because you are a descendant of the deceased. A common phrase in wills.
Tort liability which is set upon the defendant if it is proved that it was the defendant’s object that caused the damage. There is no need under strict liability to also prove intent, negligence, or fault.
The feudal system of tenure, whereby a person receiving a grant of land from a lord, could himself become a lord by subdividing and subletting that land to others.
A matter that is still under consideration by a court. You will hear of politicians declining to speak on a certain subject because the subject matter is “sub judice”.
To be subject to the orders or direction of another; of lower rank.
Latin: “under penalty”. An order of a court which requires a person to be present at a certain time and place or suffer a penalty. This is the traditional tool used by lawyers to ensure that witnesses present themselves at a given place, date and time to make themselves available to testify (see also duces tecum).
To pay off someone else’s debt and then try to get the money from the debtor yourself. (Compare with “novation”.) Subservient tenement The real property that supports or endures an easement. The real property benefiting from an easement is called the dominant tenement.
If a party appears to be avoiding service of court documents, a request may be made with the court for substituted service. This includes, instead of personal service (i.e. giving the document directly to the person), that the document be published in a local newspaper; served on a person believed to frequent the person; or mailed to his (or her) last known address.
A person who takes over the rights of another.
A person who possesses full civil rights and is not under any legal incapacity such as being bankrupt, of minor age or mental incapacity. Most adults are sui juris.
In the USA, this is one of the initial documents issued in a civil suit; giving the defendant notice of the claim and an opportunity to defend it. The summons also gives the court which issues it the authority to dispose of the matter
The person who has pledged him or herself to pay back money or perform a certain action if the principal to a contract fails, as collateral, and as part of the original contract. Technically, where a person provides collateral after or before the original contract is signed, and as a separate contract, the person is called a “guarantor” and not a “surety.”
A civil law term for a reciprocal or bilateral contract: one in which both parties provide consideration. A contract of sale is a classic example, where one party provides money and the other, goods or services. A gift is not a synallagmatic contract.
The name of an American federal labor law which was passed in 1947, and which sought to “equalize legal responsibilities of labor organizations and employers”. An earlier law, called the Wagner Act, was aimed primarily at employer behavior and, it was felt, may have gone too far in protecting union rights. To balance that, the Taft-Hartley was aimed at unions and sought to restrain their activities under certain circumstances, by detailing union rights and duties. For example, the Taft-Hartley Act exempted supervisors from its provisions, allowed employees to decline participation in union activities and permitted union decertification petitions.
To interfere improperly or in violation of the law. One example is “jury tampering”, which means to illegally disrupt the independence of a jury member with a view to influencing that juror otherwise than by the production of evidence in open court.
Tenancy by the entireties
A form of co-ownership in English law where, when a husband transferred land to his wife, the property could not be sold unless both spouses agreed nor could it be severed except by ending the marriage.
An ancient term derived from “tenure”, the feudal system under which land ownership was granted to someone by their lord. Today, a tenant is one who is granted temporary and exclusive use of land or a part of a building by a landlord, usually in exchange for rent. The contract for this type of legal arrangement is called a lease
Tenants in common
Unity of possession but distinct titles. Similar to joint tenants (which see). All tenants in common share equal property rights except that each tenant can dispose of his share separately. For instance, upon the death of a tenant in common, that share does not go to the surviving tenants but is transferred to the estate of the deceased tenant.
In law, an unconditional offer by a party to a contract to perform their part of the bargain. In a loan contract, a tender would be an act of the debtor producing the amount owing and offering it to the creditor. In real property law, either party can write a tender; the seller to reassert the intention to respect the contract and tender the title, or the buyer, offering to tender the purchase price immediately.
Property that could be subject to tenure under English land law; usually land, buildings or apartments. The word is rarely used nowadays except to refer to dominant or servient tenements when qualifying easements. Popularly, it has come to mean a run-down piece of rental property.
Originally, a right of holding or occupying land or a position for a certain amount of time. The term was first used in the English feudal land system, whereby all land belonged to the king but was lent out to lords for a certain period of time; the lord never owning, but having tenure in the land. Today it is used in modern law mostly to refer to a position a person occupies, such as in the expression “a judge holds tenure for life and on good behavior.”
A trust which takes effect only upon the death of the settlor, commonly found as part of a will. Trusts which take effect during the life of the settlor are called inter vivos trusts.
A person who dies with a valid will.
The verbal presentation of a witness in a judicial proceeding.
Derived from the Latin word tortus which means wrong. In French, “tort” means “a wrong”. Today, tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury. All persons are expected to live without injuring others. When they do injury to others, either intentionally or by negligence, tort law can be invoked so that they can be required by a court to pay money (“damages”) to the injured party so that, ultimately, they will suffer from their own injurious actions. Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct.
Name given to a person or persons who have committed a tort.
The attempt, by a plaintiff, to reclaim certain specific property. This is a legal proceeding taken through the court under the law of equity. The property may be still in the first acquirer’s hands or it may have passed on to others, and even have been converted (related common law terms: conversion, trover and detinue). This is a procedure frequently used by a trust beneficiary to recover misappropriated trust property.
A person who receives property being transferred (the person from whom the property is moving is the transferor).
A person from whom property moves or is transferred. Property moves from the transferor to the transferor. The party selling is the transferor and transfers title to the transferee.
A formal agreement between two states signed by official representatives of each state. Some treaties are “law-making” in that it is the declared intention of the signatories to make or amend their internal laws to give effect to the treaty. Other treaties are just contracts between the signatories to conduct themselves in a certain way or to do a certain thing. These treaties are usually private, between two or a limited number of states and may be binding only through the International Court of Justice.
Unlawful interference with another’s person, property or rights. Theoretically, all torts are trespasses.
An old English and common law legal proceeding against a person who had found someone else’s property and has converted that property to their own purposes. The action of trover asked for damages in an amount equal to the replacement value of the property rather than the return of the property itself. English law replaced the action of trover with that of conversion in 1852.
Property given by one person or group (the donor or settlor), to a trustee, for the benefit of another person (the beneficiary or donee). The trustee manages and administers the property. Actual ownership is shared between the trustee and the beneficiary and all the profits go to the beneficiary. The trustee has a fiduciary responsibility to the beneficiary. There are many forms of trusts. A will is a form of trust but trusts can be formed during the lifetime of the settlor in which case it is called an inter vivos or living trust.
The person holding property rights for the benefit of another through the legal mechanism of a trust, usually having full management and administration rights over the property. These rights must always be exercised to the full advantage of the beneficiary and all profits from the property go to the beneficiary, and a trustee can be held responsible for any mismanagement of the trust’s assets. The trustee is entitled to reimbursement for administrative costs and there is no legal impediment for a trustee to be a beneficiary of the same property.
Trustee de son tort
A trustee “of his own wrong”; a person who is not a regularly appointed trustee but because of his or her intermeddling with the trust and the exercise of some control over the trust property, can be held by a court as “constructive” trustee which entails liability for losses to the trust.
Uniform Interstate Family Support Act, the successor of URESA (which see). The uniform child and spousal support legislation already adopted and implemented by most states and expected to be law throughout the USA soon. It is a long-arm statute, giving the state which issues the first support order jurisdiction over the support payor anywhere in the USA for the purposes of varying that order
Literally, without authority. An act which is beyond the power or authority of the person or organization taking it.
A legal procedure which seeks reimbursement from one who benefits from another’s action or property without legal justification. This is based on the legal theory of the constructive trust, which the court imposes upon the circumstances to hold the person unjustly enriched as trustee, and the person who should properly get the property back as beneficiary of the constructive trust. A court may not force reimbursement based on “unjust enrichment” unless these three conditions are met: defendant receives an actual enrichment or benefit; a corresponding deprivation is suffered by the plaintiff; and the absence of a legal reason for the defendant’s enrichment
Uniform Reciprocal Enforcement of Support Act of the United States, as created in 1950 by the National Conference of Commissioners on Uniform State Laws. This was the first family support uniform legislation in the USA and it was ultimately adopted, in some form or another, by all the US states. It was updated in 1968 and the revised version became known as “RURESA”, the initial “R” standing for “Revised.” It has been replaced by UIFSA.
From ancient Roman law (and now a part of many civil law systems), “usufruct” means the rights to the product of another’s property. For example, a farmer may give a right of “usufruct” of his land to a neighbor, thus enabling that neighbor to sow and reap the harvest of that land.
An excessive or illegal interest rate. Most countries now set a limit on interest rates and prohibit interest rates above a certain level. Rates which exceed these levels are called “usury”.
The seller; the person selling.
Location; in a legal context it usually refers specifically to the location of a judicial hearing. For example, if a criminal case has a very high media profile in a particular city, the defense may ask for a “change of venue” to ensure objective witnesses.
Any thing designed to transport persons or objects, such as a car, bus, bicycle, etc. Verba fortius accipiuntur contra proferentem Latin: a principle of construction whereby if words of a contract are ambiguous or of two equally possible meanings, they should be interpreted against the author of the words and not against the other party.
The decision of a jury. In criminal cases, this is usually expressed as “guilty” or “not guilty”. In a civil case, the verdict would be a finding for the plaintiff or for the defendant.
Latin for “to wit” or “that is to say.” “Viz.” is the abbreviation of videlicet and is much more commonly used. It is often found in legal documents to advise that what follows provides more detail about a preceding general statement. Also spelled “vis”.
When a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong. This is often the case with employers who are held vicariously liable for the damages caused by their employees.
Latin: man or husband. Refers to “Vir et uxor censentur in lege una persona”, an old legal principle meaning that man and wife are considered to be one person in law. This principle has been abandoned in many countries.
Void or void ab initio
Not legally binding. A document that is void is as if it did not exist. A contract for immoral purposes or to commit a serious crime such as murder would be void or unenforceable. This differs from voidable (which see).
The law distinguishes between contracts which are void and those which are voidable. Voidable contracts are those that have minor defects to them and are voidable at the option of the party victimized by the defect. For example, contracts signed by a person when they are totally drunk are voidable by that person upon recovering sobriety.
A mini-hearing held during a trial on the admissibility of contested evidence. For example, a defendant may object to a plaintiff’s witness. The court would suspend the trial, immediately preside over a hearing on the standing of the proposed witness, and then resume the trial with or without the witness, or with any restrictions placed on the testimony by the judge as a result of the voir dire ruling. In a jury trial, the jury would be excused during the voir dire.
Volenti non fit injuria
Voluntary assumption of risk. This is used as a defense in tort when a person engages in an event, accepting and aware of the risks inherent in that event. This is a voluntary assumption of risk and they cannot later complain of, or seek compensation for, an injury suffered during the event. This is used most often to defend against tort actions as a result of a sports injury.
A 1935 American federal statute which recognized employee rights to collective bargaining, protected the right to belong to a union, prohibited many anti-union tactics then used by employers, and set up the National Labor Relations Board. The NLRB was given wide enforcement powers. It was later amended by the Taft-Hartley Act in 1947.
A disclaimer or renunciation to a right that might have otherwise been available. Waivers need not always be in writing and may sometimes be interpreted by a person’s actions
A guarantee given on the performance of a product or the doing of a certain thing. Many consumer products come with a warranty under which the manufacturer will repair or replace any product that fails during the warranty period; the commitment to repair or replace being the “warranty”.
The abuse, destruction or permanent change to property by one who is merely in possession of it, as in the case of a tenant or a life tenant.
Being married. Has the same meaning as “matrimony.” Used mostly to refer to illegitimate children as “born out of wedlock.”
A written and signed statement, made by an individual, providing for the disposition of their property upon their death. Other types of wills also exist, such as a holographic will (which see). See also codicil and probate.
An electronic surveillance device which secretly records conversations held over a phone line. It is usually only allowed with the permission of a judge and if it can be shown to be necessary for the solving of a serious crime.
Exact wording set into a written document which qualifies the signatory as exempted from its content to the extent that the content may be interpreted as containing admissions or other interpretations which could later be used against the person signing; or as otherwise affecting any legal rights of the person signing. A lawyer will often send a letter “without prejudice” in case the letter makes admissions which could later prove inconvenient to the client.
A person who perceives an event (by seeing, hearing, smelling or other sensory perception). The legal definition refers to the court-supervised recital of that sensory experience, in writing (deposition) or verbally (testimony).
Words of limitation
Words in a conveyance or in a will which set the duration of an estate. If a will said “to Bob and his heirs”, the words “and his heirs” are words of limitation because they indicate that Bob gets the land in fee simple and his heirs get no interest.
Words of purchase
Words which specifically name the person to whom land is being conveyed. The property is conveyed to someone specifically and by name in a legal act such as a conveyance or will. This would preclude, for example, transfer as a result of intestacy.
An official court document, signed by a judge or bearing an official court seal, which commands the person to whom it is addressed, to do something specific. That “person” is typically either a sheriff (who may be instructed to seize property, for example) or a defendant (for whom the writ is the first notice of formal legal action). In this case, the writ would command the person to answer the charges laid out in the suit, or else judgment may be made against them in their absence.
An American tort law action which claims damages from any person who, through negligence or direct act or omission, causes the death of certain relatives (e.g. spouse, children or parent). These actions are commenced under special “wrongful death” statutes because under the common law, there is no right of action for survivors for their own loss as a result of someone’s death.
Being fired from a job without an adequate reason or without any reason whatsoever. Employees do not have a right to a job for life and can be dismissed for economic or performance reasons but they cannot be dismissed capriciously. Most employment implies an employment contract, which may be supplemented by labor legislation, and either could provide for certain procedures to be followed for dismissal. Failing to follow these procedures may create a situation in which any firing is wrongful dismissal and for which the employee could ask a court for damages against the employer. Can also be referred to as “dismissal without just cause.” Not all states recognize this tort law action.
An employment contract in which the employer forbids the employee to join a labor union. Yellow-dog contracts are not legally enforceable.
Young persons who, in many states, are treated differently than adult criminals and are tried in special youth courts.
The proper way to address a judge in court.
The laws dividing cities into different areas according to use, from single-family residences to industrial plants. Zoning ordinances control the size, location, and use of buildings within these different areas.