Legal Dictionary


A

Abatement

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".

Abet

To aid, encourage or incite another to do wrong. "Aiding and abetting"
is a crime in many countries.

Acceleration clause

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).

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.

Acquiescence

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.

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".

Ad infinitum

Latin: endlessly; without limit; indefinitely. Abbreviated "ad inf".

Addendum

An addition to a written document. A petition maybe added to a writ and thus become
an addendum.

Adhesion contract

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".

Administrative law

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.

Administrator

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".

Adultery

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."

Affidavit

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.

Aggravated damages

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.

Alimony

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.

Allodial

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".

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.

Ambassador

The highest ranking diplomatic position; a citizen officially appointed by their
country's government to legally represent it in another country.

Amend

In law, to change or to revise a written document.

Animus contrahendi

Latin: an intention to contract.

Antedate

Literally, "before date". To set an earlier date for an event, for instance
to date a check earlier than it was written.

Anti-trust

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.

Appearance

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".

Appurtenance

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.

Arraignment

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.

Arson

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.

Assign

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.

Attorney

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.

Autrefois acquit

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.

Avulsion

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.


B

Bad faith/Intent to deceive

A person who intentionally tries to deceive or mislead another in order to gain
some advantage.

Bailee

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.

Bailor

One who temporarily transfers possession of property to another, the bailee, under
a contract of bailment.

Bare trust

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.

Bastard

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.

Beneficiary

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).

Bigamy

Marriage to more than one person at the same time. This is a criminal offence
in most countries.

Bill of lading

A document used by a transport company acknowledging receipt of goods, and serving
as title for the purpose of transportation.

Bona vacantia

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.

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.

Buggery

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".


C

Canon law

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."

Case law

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".

Caveat emptor

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.

Cestui que trust or cestui que use

The formal Latin word for the beneficiary or donee of a trust.

Champerty

An agreement to finance another's lawsuit in exchange for a portion of the judicial
award.

Chattel

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.

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.

Circumstantial evidence

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.

Civil law

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.

Class action

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.

Clean hands

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.

Codicil

An amendment to an existing will. The codicil changes only the items mentioned
in it, not the entire will.

Collateral descendant

A descendant that is not direct, such as a niece or a cousin.

Collusion

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.

Committee

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").

Common share

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).

Comparative negligence

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.

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".

Confession

A statement made by a person suspected or charged with a crime, that he (or
she) did, in fact, commit that crime.

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.

Consign

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.

Constitution

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).

Constructive Dismissal

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.

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).

Contract

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.

Contributory negligence

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.

Conveyance

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.

Coparcenary

An estate in which all the heirs by descent are treated as one heir, having
one estate.

Coroner

A public official who holds an inquiry into violent or suspicious deaths. A
coroner has the power to summon people to an inquest.

Corporate secretary

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.

Costs

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.

Court martial

A military court set up to try and punish offenses by members of the armed forces.

Covenant

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.

Crime

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.

Criminal law

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.

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.

Curtilage

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.

Cy-près

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.


D

Damages

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.

De facto

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.

De jure

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.

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.

De novo

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.

Debtor

One who owes money, goods or services to another, the latter being referred to
as the creditor.

Decree absolute

The name given to the final and conclusive court order after the condition of
a decree nisi (which see) is met.

Deed

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.

Defamation

An attack on the good reputation of a person, by slander or libel (which see).

Defendant

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.

Demand letter

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.

Deposition

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.

Detinue

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".

Devise

The transfer or conveyance of real property by will.

Diplomat

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.

Disrate

A term of maritime law meaning an officer or other seaman is either demoted in
rank or deprived of a promotion.

Dissolution

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.

Dividend

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.

DNA

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.

Doctrine

A rule or principle of the law established through the repeated application of
legal precedents.

Dominant tenement

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.

Dominion utile

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.

Donee

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.

Duces tecum

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.

Dum casta

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.

Dum vidua

Latin: for so long as she remains a widow.

Duress

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).


E

Easement

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.

Emancipation

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".

Embezzle

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.

Emolument

A legal term referring to all wages or other benefits received as compensation
for holding some office or employment.

Emptio or emtio

Latin for "purchase" or the contract in which something is bought.

Endorsement

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.

Entrapment

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.

Escheat

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.

Estate law

A term describing that part of the law regulating wills, probate and other subjects
related to the distribution of a deceased person's "estate".

Euthanasia

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.

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.

Ex rel

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.

Exculpate

Something that excuses or justifies a wrong action.

Exhibit

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.

Expatriate

One who has abandoned his or her country of origin and citizenship and has become
a subject or citizen of another country.

Express trust

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.

Extradition

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.


F

Fair market value

A hypothetical number representing the most probable price that would be paid
for a property by average, informed purchasers.

Fee tai

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.

Feudal system

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.

Fieri facias

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.

Foreclosure

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.

Fraud

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.

Freeholder

One who owns freehold property rights (i.e. in a piece of real estate; either
land or a building).

Functus officio

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.

Furiosi nulla voluntas est

A Latin expression meaning that mentally impaired persons cannot validly sign
a will.


G

Garnishment

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.

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.

Gift over

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.

Grand Jury

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".

Guarantor

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."

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.


H

Habeas corpus

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.

Harassment

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.)

Holograph will

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).

Hostile witness

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.

Husband-wife privilege

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.


I

Immunity

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.

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).

In rem

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.

Incorporeal hereditament

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.

Indictment

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.

Injunction

A court order which prohibits an activity by a party (restrictive injunction)
or compels the party to a specific action (mandatory injunction).

Inter alia

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.

Interlineation

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).

Interlocutory injunction

An injunction lasting only for the duration of the trial during which the injunction
was sought.

International law

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.

Intestate

To die without a will or testamentary document.

Inure

To take effect, to result; to come into operation.

Islamic law

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.


J

Jactitation

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.

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.

Joint tenancy

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.

Jure

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."

Jurisprudence

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.

Jus

Latin: word which, in Roman law, meant the law or a right. Also spelt "ius"
in some English translations.

Justice Fairness

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.


K

Kidnapping

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.

Kiting

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.

Knowingly

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.


L

Laches

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".

Larceny

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.

Lawyer

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.

Lease

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.

Legal custody

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).

Liability

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.

Liberal construction

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.

Lien

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.

Life tenant

The beneficiary of a life estate.

Limitrophe

Adjacent, bordering or contiguous.

Liquidation

The selling of all the assets of a debtor and the use of the cash proceeds of
the sale to pay off creditors.

Literal construction

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).

Livery Delivery

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.

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.

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.


M

Magna Carta

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".

Malfeasance

To commit an illegal action. See also misfeasance and nonfeasance.

Manslaughter

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.

Marriage

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.

Matrimony

The legal state of being married. Clerics refer to the "holy" estate
of matrimony.

Minor

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.

Miranda warning

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.

Misfeasance

Improperly doing something which a person has the legal right to do. Compare with
malfeasance and nonfeasance.

Misrepresentation

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.

Mitigating circumstances

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.

Modus operandi

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."

Monopoly

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.

Moot court

A training activity, usually held by law schools, for future lawyers, in which
a fictional or hypothetical trial is held.

Mortgage

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.

MOU

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.


N

Nation

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."

Natural justice

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.

Negligence

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.

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".

Nolo contendere

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.

Nonfeasance

The failure to do something that a person should be doing. See also malfeasance
and misfeasance.

Notary

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.

Novation

To substitute a new debt for an old debt thereby canceling the old debt. See also
subrogation.

Nuisance

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.


O

Oath

A religious or solemn affirmation to tell the truth or to take a certain action.

Obligee

That person who receives the benefit of someone else's obligation; that "someone
else" being the obligor. Also called a "promisee".

Obscenity

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.

Offense

A crime; any act which contravenes the criminal law of the state in which it occurs.

Ombudsman

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.

Onus

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.

Order

A formal written direction given by a member of the judiciary; a court decision
without reasons.

Orphan

A person who has lost one or both natural parents.


P

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.

Paralegal

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.

Parens patriae

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.

Pari passu

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.

Parricide

Killing one's father or another family member or close relative.

Paternity

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.

Payor

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.

Pen register

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.

Percolating water

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.

Perpetuating testimony

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.

Person

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.

Petition

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."

Petty offense

A minor crime for which the punishment is usually just a small fine or short term
of imprisonment. See also misdemeanor and felony.

Picket

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.

Plea bargaining

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.

Poach

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.

Polygraph

A lie-detector machine. It works by recording variations in blood pressure, body
temperature and respiration of a subject as he answers questions.

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.

Precatory words

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.

Preferred shares

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.

Prescription

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."

Prima facie(Latin)

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.

Private law

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.

Pro bono

Provided for free. Pro bono publico means "for the public good."

Pro forma

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.

Pro se

Latin: in one's personal behalf. Contrast with pro socio.

Probate

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.

Promisee

A person who is to be the beneficiary of a promise, an obligation or a contract.
Synonymous to "obligee."

Promissory note

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;

Propinquity

Nearness in place; close by. Also used to describe relationships as synonymous
for "kin."

Propound

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.

Prosecute

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.

Prostitute

A person who offers sexual intercourse for hire.

Proxy

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.

Public law

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.


Q

Quantum

Latin: amount or extent.

Quasi-judicial

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.

Quorum

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.


R

Ransom

Money paid to have a kidnapped person released.

Real property

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.

Redemption

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.

Remainder

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.

Rent

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."

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.

Rescind

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.

Respondent

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).

Restitution

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.

Retainer

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.

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.

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.


S

Sanction

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.

Scienter

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).

Seisin

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.

Sequestration

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.

Servitude

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.

Sexual harassment

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.

Share

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.

Silent partner

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.

Slander

Verbal or spoken defamation; opposed to libel, which is written defamation.

Slavery

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.

Socage

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.

Solicitor

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

Split custody

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.

Stare decisis

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.

Statutes

The written laws approved by legislatures, parliaments or houses of assembly (i.e.,
politicians). Also known as "legislation".

Statutory trust

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.

Strict liability

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.

Sub judice

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".

Subpoena

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).

Substituted service

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.

Sui juris

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.

Surety

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."


T

Taft-Hartley

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.

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.

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.

Tenement

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.

Testamentary trust

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.

Testimony

The verbal presentation of a witness in a judicial proceeding.

Tort-feasor

Name given to a person or persons who have committed a tort.

Transferee

A person who receives property being transferred (the person from whom the property
is moving is the transferor).

Treaty

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.

Trover

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.

Trustee

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.


U

UIFSA

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

Unjust enrichment

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

Usufruct

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.


V

Vehicle

Any thing designed to transport persons or objects, such as a car, bus, bicycle,
etc.

Vendor

The seller; the person selling.

Verdict

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.

Vir

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.

Vis

See Videlicet.

Voidable

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.

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.


W

Wagner Act

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.

Warranty

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".

Wedlock

Being married. Has the same meaning as "matrimony." Used mostly to refer
to illegitimate children as "born out of wedlock."

Wire-tapping

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.

Witness

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 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.

Wrongful death

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.


Y

Yellow-dog contract

An employment contract in which the employer forbids the employee to join a labor
union. Yellow-dog contracts are not legally enforceable.

Your honor

The proper way to address a judge in court.