AAbatement A reduction in some amount that is owed, usually granted by the person to whom the debt is owed. For example, a landlord might grant an abatement in rent. In estate law, the word may refer more specifically to a situation where property identified in a will cannot be given to the beneficiary because it had to be sold to pay off the deceased debts. Debts are paid before gifts made in wills are distributed and where a specific gift has to be sold to pay off a debt, it is said to "abate" (compare with " ademption"). Abbacinare A barbaric form of corporal punishment meted out in the middle ages where persons would be permanently blinded by the pressing of hot irons to the open eyes. Abduction To take someone away from a place without that person's consent or by fraud. See also " kidnapping". Abet The act of encouraging or inciting another to do a certain thing, such as a crime. For example, many countries will equally punish a person who aids or abets another to commit a crime. Ab initio Latin: from the start. Acceleration clause A clause in a contract that states that if a payment is missed, or some other default occurs (such as the debtor becoming insolvent), then the contract is fully due immediately. This is a typical clause in a loan contract; miss one payment and the agreement to pay at regular intervals is voided and the entire amount becomes due and payable immediately. Acceptance One of three requisites to a valid contract under common law (the other two being an offer and consideration). A contract is a legally binding agreement between two or more parties which starts with an offer from one person but which does not become a contract until the other party signifies an unequivocal willingness to accept the terms of that offer. The moment of acceptance is the moment from which a contract is said to exist, and not before. Acceptance need not always be direct and can, in certain circumstances, be implied by conduct (see acquiescence below). Accord and Satisfaction A term of contract law by which one party, having complied with its obligation under a contract, accepts some type of compensation from the other party (usually money and of a lesser value) in lieu of enforcing the contract and holding the other party to their obligation. This discharges the contract. The definition cited by lawyers is usually that found in 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." Accretion The imperceptible and gradual addition to land by the slow action of water. Heavy rain, river or ocean action would have this effect by either washing up sand or soil or by a permanent retreat of the high water mark. The washing up of soil is often called avulsion although the latter term is but a variety of accretion. Acquiescence Action or inaction which binds a person legally even though it was not intended as such. For example, action which is not intended as a direct acceptance of a contract will nevertheless stand as such as it implies recognition of the terms of the contract. For example, if I display a basket of fruit in a marketplace and you come by, inspect an apple and then bite into it, you have acquiesced to the contract of sale of that apple. Acquiescence also refers to allowing too much time to pass since you had knowledge of an event which may have allowed you to have legal recourse against another, implying that you waive your rights to that legal recourse. Act A bill which has passed through the various legislative steps required for it and which has become law, as in "an Act of the Commonwealth of Australia." Synonymous to statute, legislation or law. Act of God An event which is caused solely by the effect of nature or natural causes and without any interference by humans whatsoever. Insurance contracts often exclude "acts of God" from the list of insurable occurrences as a means to waive their obligations for damage caused by hurricanes, floods or earthquakes, all examples of "acts of God". Ad colligendum bona When a person dies and there is no apparent executor or administrator, a person can be appointed by Court order and for the limited and sole purpose of collecting, inventorizing and preserving the assets of the deceased until an appropriate full-fledged administrator can be found or appointed. Known then as an administrator ad colligendum, this person is a agent of the Court and does not have the true or full authority of an administrator of an estate. Ad damnum Latin: refers to the parts or sections of a petition that speaks to the damages that were suffered and claimed by the plaintiff. The ad damnum part of a petition will usually suggest an amount in dollars that the plaintiff asks the court to award. Addendum An attachment to a written document. For example, affidavits may be addendums to a petition as a petition may be an addendum to a writ. Ademption When property identified in a will cannot be given to the beneficiary because it no longer belonged to the deceased at the time of death. For example, the particular gift may have been destroyed, sold or given away between the time of the will and the time of death. Compare this with " abatement". Adhesion contract A fine-print consumer form contract which is generally given to consumers at point-of-sale, with no opportunity for negotiation as to it's terms, and which, typically, sets out the terms and conditions of the sale, usually to the advantage of the seller. Ad hoc Latin: for this purpose; for a specific purpose. An ad hoc committee, for example, is created with a unique and specific purpose or task and once it has studied and reports on the matter, it stands disbanded (compare with standing committee). Ad infinitum Latin: forever; without limit; indefinitely. Ad litem Latin: for the suit. A person appointed only for the purposes of prosecuting or defending an action on behalf of another such as a child or mentally-challenged person. Also called a guardian ad litem. Administrative law Synonymous with "natural justice." Administrative law is that body of law which 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. Administrative tribunal Hybrid adjudicating authorities which straddle the line between government and the courts. Between routine government policy decision-making bodies and the traditional court forums lies a hybrid, sometimes called a "tribunal" or "administrative tribunal" and not necessarily presided by judges. These operate as a government policy-making body at times but also exercise a licensing, certifying, approval or other adjudication authority which is " quasi-judicial" because it directly affects the legal rights of a person. Administrative tribunals are often referred to as "Commission", "Authority" or "Board." Administrator A person who administers the estate of a person deceased. The administrator is appointed by a court and is the person who would then have power to deal with the debts and assets of a person who died intestate. Female administrators are called "administratrix." An administrator is a personal representative. ADR Abbreviation for alternative dispute resolution. Adultery Voluntary sexual intercourse between a married person and another person who is not their married spouse. In most countries, this is a legal ground for divorce. The person who seduces another's spouse is known as the "adulterer." In old English law, this was also known as criminal conversation. Adverse possession The possession of land, without legal title, for a period of time sufficient to become recognized as legal owner. The more common word for this is "squatters." Each state has its own period of time after which a squatter can acquire legal title. Some states prohibit title by mere prescription or possession. Affidavit A statement which before being signed, the person signing takes an oath that the contents are, to the best of their knowledge, true. It is also signed by a notary or some other judicial officer that can administer oaths, to the effect that the person signing the affidavit was under oath when doing so. These documents carry great weight in Courts to the extent that judges frequently accept an affidavit instead of the testimony of the witness. Agent A person who has received the power to act on behalf of another, binding that other person as if he or she were themselves making the decisions. The person who is being represented by the agent is referred to as the " principal." Aggravated damages Special and highly exceptional damages awarded by a court where the circumstances of the tortious conduct have been particularly humiliating or malicious towards the plaintiff/victim. Alimony An amount given to one spouse to another while they are separated. Historically, the word "alimony" referred to monies paid while spouses were legally separated but stilled wedlocked. Where they were divorced, the monies payable were then referred to as " maintenance" but this distinction is now in disuse. Alliance A military treaty between two or more states, providing for a mutually-planned offensive, or for assistance in the case of attack on any member. Alienate To sell or give completely and without reserve; to transfer title to somebody else. A voluntary conveyance of property, especially real property. Allodial A kind of land ownership that is unfetterred, outright and absolute. It is the opposite of the feudal system and supposes no obligation to another (ie. a lord). Allonge A piece of paper which has been attached to a contract, a check or any promissory note, on which to add signatures because there is not enough room on the main document. Alternative dispute resolution Also known as "ADR"; methods by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts, usually through one of two forms: mediation or arbitration. It typically involves a process much less formal than the traditional court process and includes the appointment of a third-party to preside over a hearing between the parties. The advantages of ADR are speed and money: it costs less and is quicker than court litigation. ADR forums are also private. The disadvantage is that it often involves compromise. Amalgamation The merging of two things together to form one such as the amalgamation of different companies to form a single company. Ambassador A citizen that has been officially asked by their country to live in another country in order to legally represent it. For example, the USA has sent ambassadors to live, and represent the USA, in almost all other countries. Ambulatory Something which is not cast in stone; which can be changed or revoked, such as a will. Amend To change, to revise, usually to the wording of a written document such as legislation. Amicus curiae Latin: friend of the court. Refers more specifically to persons asking for permission to intervene in a case in which they are neither plaintiff or defendant, usually to present their point of view (or that of their organization) in a case which has the potential of setting a legal precedent in their area of activity. This is common, for example, in civil rights cases and, in some instances, can only be done with the permission of the parties or the court. Animus contrahendi Latin: an intention to contract. Annulment To make void; to cancel an event or judicial proceeding both retroactively and for the future. Where, for example, a marriage is annulled, it is struck from all records and stands as having never transpired in law. This differs from a divorce which merely cancels a valid marriage only from the date of the divorce. A marriage annulled stands, in law, as if never performed. Antedate To date back; retroactively. To date a document to a time before it was written. Antenuptial An event or document which pre-dates a marriage. For example, an "antenuptial agreement" is one which is signed before marriage. A antenuptial gift is a gift given by one spouse to the other before marriage. Anti-trust (USA)"Anti-trust" legislation is designed to prevent businesses from price-setting or 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. Appeal To ask a more senior court or person to review a decision of a subordinate court or person. In some countries such as Canada, the USA and Australia, appeals can continue all the way up to the Supreme Court, where the decision is final in that it can no longer be appealed. That is why it is called "supreme" (although, in Australia the supreme court is called the High Court ). Appearance The act of showing up in court as either plaintiff, defendant, accused or any other party to a civil or criminal suit. It implies that you accept the power of the court to try the matter (i.e. "jurisdiction"). Appearances are most often made by lawyers on their clients behalf and any appearance by a lawyer binds the client. You can make a limited appearance called a "special appearance" in which your presence is not to imply acceptance of the court's jurisdiction but, rather, to challenge the jurisdiction of the court. An example of the usefulness of a "special appearance" would be where you want to raise the fact that you were never properly served with the court papers. Apportionment The division and distribution of something into proportionate parts; to each according to their share. For example, if a court ordered apportionment of a contract, the party would be required to perform only to a extent equal to the performance of the other side. 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. Arbitration A alternative dispute resolution method by which an independent, neutral third person ("arbitrator") is appointed to hear and consider the merits of the dispute and renders a final and binding decision called an award. The process is similar to the litigation process as it involves adjudication, except that the parties choose their arbitrator and the manner in which the arbitration will proceed. The decision of the arbitrator is known as an "award." Compare with mediation. 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. Arrears A debt that is not paid on the due date adds up and accumulates as "arrears". For example, if you do not pay your rent, the debt still exists and is referred to as "arrears". The same word is used to describe child or spousal maintenance or support which is not paid by the due date. 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. Assault The touching of another person with an intent to harm, without that person's consent. 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. Attorn or Attornment To consent, implicitly or explicitly, to a transfer of a right. Often used to describe a situation where a tenant, by staying on location after the sale of the leased property, accepts to be a tenant of the new landlord; or where a person consents to ("attorns to") the jurisdiction of a court which would not have otherwise had any authority over that person. Attorney An alternate word for lawyers or " barrister & solicitor", used mostly in the USA. A person that has been trained in the law and that has been certified to give legal advice or to represent others in litigation. Audi alteram partem Latin: a principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard. 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. A vinculo matrimonii Latin: of marriage. The term is now used to refer to a final and permanent divorce. 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. Avunculus Latin: a mother's brother. "Avuncular" refers to an uncle. |
BBad faith Intent to deceive. A person who intentionally tries to deceive or mislead another in order to gain some advantage. Bail Criminal law: a commitment made (and possibly secured by cash or property) to secure the release of a person being held in custody and suspected of a crime, to provide some kind of guarantee that the suspect will appear to answer the charges at some later date. Bailee The person 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. Bailment The transfer of possession of something (by the bailor) to another person (called the bailee) for some temporary purpose (eg. storage) after which the property is either returned to the bailor or otherwise disposed of in accordance with the contract of bailment. Bailor The person who temporarily transfers possession of property to another, the bailee, under a contract of bailment. Bankruptcy The formal condition of an insolvent person being declared bankrupt under law. The legal effect is to divert most of the debtor's assets and debts to the administration of a third person, sometimes called a " trustee in bankruptcy", from which outstanding debts are paid pro rata. Bankruptcy forces the debtor into a statutory period during which his or her commercial and financial affairs are administered under the strict supervision of the trustee. Bankruptcy usually involves the removal of several special legal rights such as the right to sit on a board of directors or, for some professions that form part of the justice system, to practice, such as lawyers or judges. Commercial organizations usually add other non-legal burdens upon bankrupts such as the refusal of credit. The duration of "bankruptcy" status varies from state to state but it does have the benefit of erasing most debts even if they were not satisfied by the sale of the debtor's assets. Bare trust A trust that has become passive for the trustee because all the duties the settlor may have imposed upon the trustee have been performed or any conditions or terms have come to fruition, such as there is no longer any impediment to the transfer of the property to the beneficiary. Barrister A litigation specialist; a lawyer that restricts his or her practice to the court room. In England and some other Commonwealth jurisdictions, a legal distinction is made between barristers and solicitors, the latter with exclusive privileges of advising clients, providing legal advice, and the former with exclusive privileges of appearing in a court on behalf of a client. In other words, solicitors don't appear in court on a client's behalf and barristers don't give legal advice to clients. 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. Lawyers in some states, such as Canada, sometimes use the title "barrister and solicitor" even though, contrary to England, there is no legal distinction between the advising and litigating roles. Canadian lawyers can litigate or give legal advice, as is the case in the USA, where lawyers are referred to as "attorneys." Bastard An illegitimate child, born in a relationship between two persons that are not married (ie. not in wedlock) or who are not married at the time of the child's birth. Bench A judge in court session. Beneficiary In a legal context, a "beneficiary" usually refers to the person for whom a trust has been created. May also be referred to as a " donee" or, for legal tecchies, as a cestui que trust. Trusts are made to advantage a beneficiary ( ie. A settlor (also called a " donor") transfers property to a trustee, the profits of which are to be given to the beneficiairy). Berne Convention An international copyright treaty called the Convention for the Protection of Literary and Artistic Works signed at Berne, Switzerland in 1886 (amended several times and as late as 1971) and to which now subscribe 77 nations including all major trading countries including China, with the notable exception of Russia. It is based on the principle of national treatment. Bigamy Being married to more than one person at the same time. This is a criminal offence in most countries. Bill of exchange A written order from one person (the payor ) to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at some fixed future date, a certain sum of money, to either the person identified as payee or to any person presenting the bill of exchange. A check is a form of bill of exchange where the order is given to a bank. Bill of lading A document that a transport company possesses acknowledging that it has received goods, and serves as title for the purpose of transportation. Blind trust A trust set up by a settlor who reserves the right to terminate the trust but other than that, agrees to assert no power over the trust, which is administered without account to the beneficiary/settlor or the retention of any other measure of control over the trust's administration. In Canada, for example, it is common for government ministers to vest all their investment property to a blind trust to avoid any conflict of interest. Bona vacantia Property that belongs to no person, and which may be claimed by a finder. In some states, the government becomes owner of all bona vacantia property. Born out of wedlock Born of parents who were not married at the time of birth. Breach of contract The failure to do what one promised to do under a contract. Proving a breach of contract is a prerequisite of any suit for damages based on the contract. Breach of trust Any act or omission on the part of the trustee which is inconsistent with the terms of the trust agreement or the law of trusts. A prime example is the redirecting of trust property from the trust to the trustee, personally. Buggery Synonymous with sodomy and referring to "unnatural" sex acts, including copulation, either between two persons of the same sex or between a person and an animal (the latter act also known as "bestiality"). Most countries outlaw bestiality but homosexual activity is gradually being decriminalized. Burden of proof A rule of evidence that makes a person prove a certain thing or the contrary will be assumed by the court. For example, in criminal trials, the prosecution has the burden of proving the accused guilt because innocence is presumed. |
CCanon law The law of the Christian Church. Has little or no legal effect today. Canon law refers to that body of law which has been set by the Christian Church and which, in virtually all places, 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 church goers and church officers abide by rulings and doctrines of canon law. Also known as "ecclesiastical law." Capital punishment The most severe of all sentences: that of death. Also known as the death penalty, capital punishment has been banned in many coutries. In the United States, an earlier move to eliminate capital punishment has now been reversed and more and more states are resorting to capital punishment for serious offenses such as murder. Case law The entire collection of published legal decisions of the courts which, because of stare decisis, contributes a large part of the legal rules which apply in modern society. If a rule of law cannot be found in written laws, lawyers will often say that it is a rule to be found in "case law". In other words, the rule is not in the statute books but can be found as a principle of law established by a judge in some recorded case. The word jurisprudence has become synonymous for case law. Caveat Latin: let him beware. A formal warning. Caveat emptor means let the buyer beware or that the buyers should examine and check for themselves things which they intend to purchase and that they cannot later hold the vendor responsible for the broken condition of the thing bought. Certiorari A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete or if there has been an error of law. For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard. Cestui que trust or cestui que use The formal Latin word for the beneficiary or donee of a trust. Ceteris paribus Latin" all things being equal or unchanged. Champerty When a person agrees to finance someone else's lawsuit in exchange for a portion of the judicial award. Chaste A person who has never voluntarily had sexual intercourse outside of marriage such as unmarried virgins. Chattel Moveable items of property which are 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" or "personalty" are other words sometines used to describe the concept of chattel. The word "chattel" came from the feudal era when "cattle" was the most valuable property besides land. Chattel mortgage When an interest is given on moveable property other than real property (in which case it is usually a "mortgage "), in writing, to guarantee the payment of a debt or the execution of some action. It automatically becomes void when the debt is paid or the action is executed. Check or cheque A form of bill of exchange where the order to pay is given to a bank which is holding the payor's money. Chose in action A right of property in intangible things or which are not in one's possession, enforceable through legal or court action . Examples may include salaries, debts, insurance claims, shares in companies and pensions. 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 can be some evidence that can not be proven directly, such as with an eye-witness. And yet that evidence may be essential to prove a case. 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. Citation An order of a court to either do a certain thing or to appear before it to answer charges. The citation is typically used for lesser offences (such as traffic violations) because it relies on the good faith of the defendant to appear as requested, as opposed to an arrest or bail. The penalty for failing to obey a citation is often a warrant for the arrest of the defendant. 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. Clandestine Something that is purposely kept from the view or knowledge of others either in violation of the law or to conduct or conceal some illegal purpose. A "clandestine marriage" would be one which does not comply with laws related to publicity. Class action When different persons combine their lawsuits because the facts and the defendant are so similar. This is designed to save Court time and to allow 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. Clayton's Case An English case which established a presumption that monies withdrawn from a money account are presumed to be debits from those monies first deposited; first in, first out. The proper citation is Devaynes v. Noble (1816) 1 Mer. 572) and the presumption is not applicable to fiduciaries, who are presumed to withdraw their own money first, and not trust money. 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. Client-solicitor privilege A right that belongs to the client of a lawyer that the latter keep any information or words spoken to him during the provision of the legal services to that client, strictly confidential. This includes being shielded from testimony before a court of law. The client may, expressly or impliedly, waive the privilege and, exceptionally, it may also be waived by the lawyer if the disclosure of the information may prevent a serious crime. Codicil An amendment to an existing will. Does not mean that the will is totally changed; just to the extent of the codicil. Collateral Property which has been committed to guarantee a loan. Collateral descendant A descendant that is not direct, such as a niece or a cousin. Collateral source rule A rule of tort law which holds that the tortfeasor is not allowed to deduct from the amount he or she would be held to pay to the victim of the tort, any goods, services or money received by that victim from other "collateral" sources as a result of the tort (eg. insurance benefits). 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. Commission A formal group of experts brought together on a regular or ad hoc basis to debate matters within that sphere of expertise, and with regulatory or quasi-judicial powers such as the ability to license activity in the sphere of activity or to subpoena witnesses. Commissions usually also have advisory powers to government. The organizational form of a commission is often resorted to by governments to exhaustively investigate a matter of national concern, and is often known as a "commission of inquiry." This legal structure can be contrasted with a council, the latter not enjoying quasi-judicial or regulatory powers. 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 law Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as "unwritten" law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgement. Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the "common sense of the community, crystallized and formulated by our ancestors". Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law. For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity and the decisions of the latter, where they conflicted, prevailed. It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity. 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 (eg. first to receive any dividends). Company A legal entity, allowed by legislation , which permits a group of people, as shareholders, to create an organization, which can then focus on persuing set objectives, and empowered with legal rights which are usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money. Also known as a "corporation." The primary advantage of a company structure is that it provides the shareholders with a right to participate in the profits (by dividends) without any personal liability (the company absorbs the entire liability of the business). Comparative negligence A principle of tort law which looks at the negligence of the victim and which may lead to either a reduction of the award against the defendant, proportionate to the contribution of the victim's negligence, or which may even prevent an award altogether if the victim's negligence, when compared with the defendant, is equal to or greater in terms or contributing to the situation which caused the injury or damage. Condition precedent A contractual condition that suspends the coming into effect of a contract unless or until a certain event takes place. Many residential real estate contracts have a condition precedent which states that the contract is not binding until and unless the property is subjected to an professional inspection, the results of which are satisfactory to the purchaser. Compare with "condition subsequent". 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. Condonation Divorces can be obtained by showing a fault of the other spouse, such as adultery or cruelty. But a court will refuse to grant a divorce based on these grounds if there has been "condonation", which is the obvious or implied forgiveness of the fault. For example, if the "injured" spouse resumes cohabitation with the "guilty" spouse after being informed of the adultery, and for a long period or time, the "injured" spouse may be barred from divorce on the grounds of adultery because of "condonation". Confession A statement made by a person suspected or charged with a crime, that he (or she) did, in fact, commit that crime. Consensus A result achieved through negotiation whereby a hybrid solution is arrived at between parties to an issue, dispute or disagreement, comprising typically of concessions made by all parties, and to which all parties then subscribe unanimously as an acceptable resolution to the issue or disagreement. Consensus ad idem Latin term meaning an agreement, a meeting of the minds between the parties where all understand the committments made by each. This is a basic requirement for each contract. Consideration Under common law, there can be no binding contract without consideration, which was defined in an 1875 English decision as "some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other". Common law did not want to allow gratuitous offers, those made without anything offered in exchange (such as gifts), to be given the protection of contract law. So they added the criteria of consideration. Consideration is not required in contracts made in civil law systems and many common law states have adopted laws which remove consideration as a prerequisite of a valid contract. Consign To leave an item of property in the custody of another. A 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 to receive the property and the consignor is the person who ships the property to the consignee. Conspiracy An agreement between two or more persons to commit a criminal act. Those forming the conspiracy are called conspirators. 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 and 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). Construction The legal process of interpreting a phrase or document; of trying to find it's meaning. Whether it be a contract or a statute, there are times when a phrase may be unclear or of several meanings. Then, either lawyers or judges must attempt to interpret or "construct" the probable aim and purpose of the phrase, by extrapolating from other parts of the document or, in the case of statutes, referring to a interpretation law which gives legal construction guidelines. Generally, there are two types of construction methods: literal (strict) or liberal. Constructive dismissal Under the employment law of some states, judges will consider a situation where there has been a fundamental violation of the rights of an employee, by the employer, so severe that 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 might 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. Constructive trust A trust which a court declares or imposes onto participants of very specific circumstances such as those giving rise to an action for unjust enrichment, and notwithstanding the lack of any willing settlor to declare the trust (contrast with express trusts and resulting trusts). Contempt of court A 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). Contingency fee A method of payment of legal fees represented by a percentage of an award. Lawyers get paid in one of two ways: either you pay a straight hourly rate as you might pay a plumber (eg. $400 an hour) or the lawyer might "gamble" (i.e. "contingency" fee) and agree to only get paid if the claim is successful and by taking a portion (eg. one-third) of any award that comes after the filing of the claim. For example, if you go and see a lawyer because, after a medical emergency, your health insurance company refuses to pay your medical bills in violation of their policy, the law firm might say: "no money down. In fact, we don't get paid a cent unless you do. And then, we take one-third off the top of any award you might get." This allows the client to receive legal services without putting any money down and it allows the lawyer to advertise "we don't get paid unless you do." The lawyer associations in some counties prohibit contingency fee arrangements. In those countries that allow them, they are very prevalent in personal injury cases. Contract An agreement between persons which obliges each party to do or not to do a certain thing. Technically, a valid contract requires an offer and an acceptance of that offer, and, in common law countries, consideration. Contract law That body of law which regulates the enforcement of contracts. Contract law has its origins thousands of years as the early civilizations began to trade with each other, a legal system was created to support and to facilitate that trade. The English and French developed similar contract law systems, both referring extensively to old Roman contract law principles such as consensus ad idem or caveat emptor. There are some minor differences on points of detail such as the English law requirement that every contract contain consideration . More and more states are changing their laws to eliminate consideration as a prerequisite to a valid contract thus contributing to the uniformity of law. Contract law is the basis of all commercial dealings from buying a bus ticket to trading on the stock market. 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. Conversion The action of conversion is a common law legal proceeding for damages by an owner of property against a defendant who came across the property and who, rather than return the property, converted that property to his own use or retained possession of the property or otherwise interfered with the property. The innocence of the defendant who took the property is not an issue. It is the conversion that gives rise to the cause of action. This common law action replaced the old action of trover by English law dated 1852. Compare with detinue. Conveyance A written document which transfers property from one person to another. In real-estate law, the conveyance usually refers to the actual document which transfers ownership, between persons living (i.e. other than by will), or which charges the land with another's interest, such as a mortgage. Conviction The formal decision of a criminal trial which finds the accused guilty. It is the finding of a judge or jury, on behalf of the state, that a person has, beyond reasonable doubt, committed the crime for which he, or she, has been accused. It is the ultimate goal of the prosecution and the result resisted by the defense. Once convicted, an accused may then be sentenced. Coparcenary An obsolete co-ownership mechanism of English law where property, if there was no will, always went to the eldest son. If there was no male heir, the property went to all the female children collectively as a form of co-ownership. Copyright The exclusive right to produce or reproduce (copy), to perform in public or to publish an original literary or artistic work. Many countries have expanded the definition of a "literary work" to include computer programs or other electronically stored information. Coroner A public official who holds an inquiry into violent or suspicious deaths. A coroner has the power to summon people to the inquest. Corporal punishment A punishment for some violation of conduct which involves the infliction of pain on, or harm to the body. A fine or imprisonment is not considered to be corporal punishment (in the latter case, although the body is confined, no punishment is inflicted upon the body). The death penalty is the most drastic form of corporal punishment and is also called capital punishment . Some schools still use a strap to punish students. Some countries still punish habitual thieves by cutting off a hand. These are forms of corporal punishment, as is any form of spanking, whipping or bodily mutilation inflicted as punishment. 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. Corporation A legal entity, allowed by legislation , which permits a group of people, as shareholders (for-profit companies) or members (non-profit companies), to create an organization, which can then focus on pursuing set objectives, and empowered with legal rights which are usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money. Also known as a "company ." The primary advantage of for profit corporations is that it provides its shareholders with a right to participate in the profits (by dividends) without any personal liability because the company absorbs the entire liability of the organization. Costs This is a term often used in judgments as in "the defendant will pay costs." When a person is condemned to "costs" it means that he 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. Council A formal group of experts brought together on a regular basis to debate matters within that sphere of expertise, and with advisory powers to government. For example, Canada has a 'Standards Council of Canada" which debates and proposes standards policies and is able to make recomendations to the government of Canada. It can be contrasted with a commission which, although also a body of experts, is typically given regulatory powers in addition to a role as advisor to the government. Court martial A military court set up to try and punish offenses taken by members of the army, navy or air force. Court of admiralty A rather archaic term used to denote the court which has the right to hear shipping, ocean and sea legal cases. Also known as "maritime law". 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. For example, a coventor to a mortgage commits themself to pay the mortgage if the mortgagor defaults. Creditor A person to whom money, goods or services are owed by the debtor. Crime An act or omission which is prohibited by criminal law . Each state sets out a limited series of acts (crimes) which are prohibited and punishes 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 conversation Synonymous with adultery. In old English law, this was a claim for damages the husband could institute against the adulterer. 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. Cross-examination In trials, each party calls witnesses. Each party may also question the other's witness(es). When you ask questions of the other party's witness(es), it is called a "cross-examination" and you are allowed considerably more latitude in cross-examination then when you question your own witnesses (called an "examination-in-chief"). For example, you are not allowed to ask leading questions to your own witness whereas you can in cross-examination. Crown The word refers specifically to the British Monarch, where she is the head of state of Commonwealth countries. Prosecutions and civil cases taken (or defended) by the government are taken in the name of the Crown as head of state. That is why public prosecutors are referred to, in Canada, as "Crown" prosecutors and criminal cases take the form of "The Crown vs. John Doe" or "Regina vs. John Doe", Regina being Latin for "The Queen." 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. This principle of land ownership has been greatly tempered by case law which has limited ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly. Culpa lata Latin for gross negligence. It is more than just simple negligence and includes any action or an omission in reckless disregard of the consequences to the safety or property of another. Curtilage 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 inclosed by fencing and includes any outhouses such as stand-alone garages or workshops. It is a term one might come across in a search warrant which calls for a search of the residence its' curtilage of a particular person. Custody Means the charge and control of a child including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody, without qualification usually refers to a combination of physical custody and legal custody. For other varieties of custody, see joint custody, split custody and divided custody. Cy-pres "As near as may be": a technical word used in the law of trusts or of wills to refer to a power that the courts have to, rather than void the document, to construct or interpret the will or a trust document "as near as may be" to the actual intentions of the signatory, where a literal construction would give the document illegal, impracticable or impossible effect. |
DDamagesA 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. Death penalty Also known as capital punishment, this is the most severe form of corporal punishment as it is requires law enforcement officers to kill the offender. Forms of the death penalty include hanging from the neck, gassing, firing squad and has included use of the guillotine. de bonis non Latin and short for de bonis non administratis. A word used exclusively in estate matters and refers to situations where an estate is abandonoed by an administrator only partially administered and someone must be appointed to complete the administration of the residue of the estate; those assets not yet administered. Debtor A person who owes money, goods or services to another, the latter being referred to as the creditor. Decapitation The act of beheading a person, usually instantly such as with a large and heavy knife or by guillotine, as a form of capital punishment. This form of capital punishment is still in use in some Arab countries, notably Saudi Arabia. Decree absolute The name given to the final and conclusive court order after the condition of a decree nisi is met. Decree nisi A provisional decision of a court which does not have force or effect until a certain condition is met such as another petition brought before the court or after the passage of a period time, after which it is called a decree absolute. Although no longer required in many jurisdictions, this was the model for divorce procedures wherein a court would issue A decree nisi, which would have no force or effect until a period of time passed (30 days or 6 months). Deed A written and signed document which sets out the things that have to be done 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. Deem To accept a document or an event as conclusive of a certain status in the absence of evidence or facts which would normally be required to prove that status. For example, in matters of child support, a decision of a foreign court could be "deemed" to be a decision of the court of another for the purpose of enforcement. De facto Latin: as a matter of fact; something which, while not necessarily lawful or legally sanctified, exists in fact. A common law spouse may be referred to 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 government. Defalcation 1. Defaulting on a debt or other obligation such to account for public or trust funds. Usually used in the context of public officials. 2. Defalcation has another legal meaning referring to the setting-off of two debts owed between two people by the agreement to a new amount representing the balance. I owe you $7 and you owe me $3; we agree to "defalk"; the result is that I owe you $4. This is a type of novation. Defamation An attack on the good reputation of a person, by slander or libel. Defeasance A side-contract which contains a condition which, if realized, could defeat the main contract. The common English usage of the word "defeasance" has also become acceptable in law, referring to a contract that is susceptible to being declared void as in "immoral contracts are susceptible to defeasance." Defendant The person, company or organization who defends a legal action taken by a plaintiff and against whom the court has been asked to order damages or specific corrective action redress some type of unlawful or improper action alleged by the plaintiff. Dehors French for outside. In the context of legal proceedings, it refers to that which is irrelevant or outside the scope of the debate. 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 and is in all ways legitimate even though a de facto government may be in control. Delegatus non potest delegare One of the pivotal principles of administrative law: that a delegate cannot delegate. In other words, a person to whom an authority or decision-making power has been delegated to from a higher source, canot, in turn, delegate again to another, unless the original delegation explicitly authorized it Demand letter A letter from a lawyer, on behalf of a client, that demands payment or some other action, which is in default. 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. Basically, a demand letter sets out why the payment or action is claimed, how it should be carried out (eg. payment in full), directions for the reply and a deadline for the reply. Demand letters are often used in business contexts because they are a courtesy attempt to maintain some goodwill between business parties and they often prompt payment, avoiding expensive litigation. A demand letter often contains the "threat" that if it is not adhered to, the next communication between the parties will be through a court of law in the form of formal legal action. Demarche A word coined by the diplomatic community and referring to a strongly worded warning by one country to another and often, either explicitly or implicitly, with the threat of military consequence. Demarches are often precursors to hostilities or war. In September, 1996, for example, US President Clinton issued a demarche to Iraqi President Saddam Hussein when intelligence reports showed troops massing along the border of Kurd communities. De minimis non curat lex Latin: a common law principle whereby judges will not sit in judgement of extremely minor transgressions of the law. It has been restated as "the law does not concern itself with trifles". Demurrer This is a motion put to a trial judge after the plaintiff has completed his or her case, in which the defendant, while not objecting to the facts presented, and rather than responding by a full defence, asks the court to reject the petition right then and there because of a lack of basis in law or insufficiency of the evidence. This motion has been been abolished in many states and, instead, any such arguments are to be made while presenting a regular defence to the petition. De novo Latin: new. This term is used to refer to a trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred. Deportation The removal of a foreign national under immigration laws for reasons such as illegal entry or conduct dangerous to the public welfare. The grounds for deportation varies from country to country. 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. Descendant Those person who are born of, or from children of, another are called that person's descendants. Grandchildren are descendants of their grandfather as children are descendants of their natural parents. The law also distinguishes between collateral descendants and lineal descendants. Detinue A common law action similar to conversion and also involving the possession of property by the defendant but belonging to the plaintiff but in which the plaintiff asks the court for the return of the property, although the plaintiff may also ask for damages for the duration of the possession. Devastavit Latin for "he has wasted." This is the technical word referring to a personal representative who has mismanaged the estate and allowed an avoidable loss to occur. This action opens the personal representative to personal liability for the loss. Devise The transfer or conveyance of real property by will. Dicta or dictum Latin: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of stare decisis. May also be called "obiter dictum." Diplomat An official representative of a state, present in another state 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. Disbursement Miscellaneous expenses other than lawyer fees and court costs (i.e. filing fees) which paid on behalf of another person and for which reimbursement will eventually be demanded of that person. In a personal liability case, for example, typical disbursements might be expert medical reports, private investigator reports, photocopying and courier costs and the like. Discretionary trust A trust in which the settlor has given the trustee full discretion to decide which (and when) members of a group of beneficiaries is to receive either the income or the capital of the trust. Disrate A term of maritime law where an officer or other seaman is either demoted in rank or deprived of a promotion. Dissent To disagree. The word is used in legal circles to refer to the minority opinion of a judge which runs contrary to the conclusions of the majority. 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, ends the legal relationship between those persons formally joined by the marriage or partnership. Distraint The right of a landlord to seize the property of a tenant which is in the premises being rented, as collateral against a tenant that has not paid the rent or has otherwise defaulted on the lease, such as wanton disrepair or destruction of the premises. A common way to "distrain" against a tenant is by changing locks and giving notice to the tenant. A legal action to reclaim goods that have been distrained is called replevin. 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. Divorce The final, legal ending of a marriage, by Court order. DNA Abbreviation for deoxyribonucleic acid. A chromosome molecule which carries genetic coding unique to each person with the only exception of identical twins (that is why it is also called "DNA fingerprinting"). Through laboratory process, DNA can be extracted from body tissue such a strand of hair, semen, blood and matched against DNA discovered at a crime scene or on a victim to scientifically implicate an accused. Can also be used to match DNA between parents in a paternity suit. Docket An official court record book which lists all the cases before the court and which may also note the status or action required for each case. Doctrine A rule or principle or the law established through the repeated application of legal precedents Domicile The permanent residence of a person; a place to which, even if he or she were temporary absent, they intend to return. In law, it is said that a person may have many residences but only one domicile. 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 directum Latin: the qualified ownership of a landlord , not having possession or use of property but retaining ownership. Used in feudal English land systems to describe the King's ownership of all the land, even though most of it was lent out to lords for their exclusive use and enjoyment. 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. Donatio mortis causa A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues. Such a gift is exempted from the estate of the deceased as property is automatically conveyed upon death. In most jurisdictions, real property cannot be transferred by these death-bed gifts. Donee Another word to describe 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. Donor The person who donates property to the benefit of another, usually through the legal mechanism of a trust. The law books of some countries refer to the trust donor as a "settlor." Also used to describe the person who signs a 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 (eg. a document or some other evidence) by its holder, to the court, to serve as evidence in a trial. Due process A term of US law which refers to fundamental procedural legal safeguards of which every citizen has an absolute right when a state or court purports to take a decision that could affect any right of that citizen. The most basic right protected under the due process doctrine is the right to be given notice, and an opportunity to be heard. The term is now also in use in other countries, again to refer to basic fundamental legal rights such as the right to be heard. 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 women were to start another relationship, she forfeited her entitlement to maintenance. Dum sola Latin: for so long as she remains unmarried. Dum vidua Latin: for so long as she remains a widow. Duplex A house which has separate but complete facilities to accommodate two families as either adjacent units or one on top of the other. Duress Where a person is prevented from acting (or not acting) according to their free will, by threats or force of another, it is said to be "under duress". Contracts signed under duress are voidable and, in may places, you cannot be convicted of a crime if you can prove that you were forced or threatened into committing the crime (although this defence may not be available for serious crimes). |
EEasementA right of passage over a neighbor's land or waterway. An easement is a type of servitude. For every easement, there is a dominant and a servient tenement. Easements are also classified as negative (which prevents the servient land owner from doing certain things) or affirmative easements (the most common, which allows the beneficiary of the easement to do certain things, such as a right-of-way). Although right-of-ways 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. Ecclesiastical law Synonymous to canon law: the body of church-made law which binds only those persons which recognize it, usually only church officers, and based on aged precepts of canon law. Emancipation Term used to describe the act of freeing a person who was under the legal authority of another (such as a child before the age of majority) from that control (such as child reaching the age of majority). The term was also used when slavery was legal to describe a former slave that 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". Embargo This is an act of international military aggression where an order is made prohibiting ships or goods from leaving a certain port, city or territory and may be enforced by military threat of destroying any vehicle that attempts to break it or by trade penalties. The word has also come to refer to a legal prohibition of trade with a certain nation or a prohibition towards the use of goods or services produced by or within a certain nation. Embezzle The illegal transfer of money or property that, although possessed legally by the embezzler, is diverted to the embezzler personally by his or her fraudulent action. For example, an employee would embezzle money from the employer or a public officer could embezzle money received during the course of their public duties and secretly convert it to their personal use. Eminent domain USA: The legal power to expropriate private land for the sake of public necessity. Emolument A legal word which refers to all wages, benefits or other benefit received as compensation for holding some office or employment. Emphyteusis Civil law: a long-term (many years or in perpetuity) rental of land or buildings including the exclusive enjoyment of all product of that land and the exercise of all property rights typically reserved for the property owner such as mortgaging the property for the term of the emphyteusis or permitting a right of way. Emptio or emtio Latin for "purchase" or the contract in which something is bought. Enactment A law or a statute; a document which is published as an enforceable set of written rules is said to be "enacted". Endorsement Something written on the back of a document. An alternate spelling, in some English jurisdictions, is "indorsement." In the laws of bills of exchange, an endorsement is a signature on the back of the bill of exchange by which the person to whom the note is payable transfers it by thus making the note payable to the bearer or to a specific person. An endorsement of claim 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. Endowment The transfer of money or property (usually as a gift) to a public organization for a specific purpose, such as medical research or scholarships. Entrapment The inducement, by law enforcement officers or their agents, of another person to commit a crime for the purposes of bringing charges for the commission of that artificially-provoked crime. This technique, because it involves abetting the commission of a crime, which is itself a crime, is severely curtailed under the constitutional law of many states. Equity A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing. For example, strict common law rules would not recognize unjust enrichment, which was a legal relief developed by the equity courts. The typical Court of Equity decision would prevent a person from enforcing a common law court judgment. The kings delegated this special judicial review power over common law court rulings to chancellors. A new branch of law developed known as "equity", with their decisions eventually gaining precedence over those of the common law courts. A whole set of equity law principles were developed based on the predominant "fairness" characteristic of equity such as "equity will not suffer a wrong to be without a remedy" or "he who comes to equity must come with clean hands". Many legal rules, in countries that originated with English law, have equity-based law such as the law of trusts and mortgages. Escheat Where property is returned 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 as was often used in the feudal system when a tenant died without heirs or if the tenant was convicted of a felony. Escrow When the performance of something is outstanding and a third party holds onto money or a written document (such as shares or a deed) until a certain condition is met between the two contracting parties. Estate law A term used by the law to decribe that part of the law which regulates wills, probate and other subjects related to the distribution of a deceased person's "estate". Estoppel A rule of law that when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper. A 1891 English court decision summarized estoppel as "a rule of evidence which precludes a person from denying the truth of some statement previously made by himself". 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. Evidence Proof of fact(s) presented at a trial. The best and most common method is by oral testimony; where you have an eye-witness swear to tell the truth and to then relate to the court (or jury) their experience. Evidence is essential in convincing the judge or jury of your facts as the judge (or jury) is expected to start off with a blank slate; no preconceived idea or knowledge of the facts. So it is up to the opposing parties to prove (by providing evidence), to the satisfaction of the court (or jury), the facts needed to support their case. Besides oral testimony, an object can be deposited with the court (eg. a signed contract). This is sometimes called "real evidence." In other rarer cases, evidence can be circumstantial. Ex aequo et bono Latin for "in justice and fairness." Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and just. Most legal cases 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 a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just given the circumstances. Examination-in-chief The questioning of your own witness under oath. Witnesses are introduced to a trial by their examination-in-chief, which is when they answer questions asked by the lawyer representing the party which called them to the stand. After their examination-in-chief, the other party's lawyer can question them too; this is called "cross-examination". Exculpate Something that excuses or justifies a wrong action. Executor A person specifically appointed by a testator to administer the will ensuring that final wishes are respected (i.e. that the will is properly "executed"). An executor is a personal representative. Exhibit A document or object shown to the court as evidence in a trial. They are each given a number or letter by the court clerk as they are introduced for future reference during the trial. For example, weapon are frequently given as exhibits in criminal trials. Except with special permission of the court, exhibits are locked up in court custody until the trial is over. Ex parte Latin: for one party only. Ex parte refers to those proceedings where one of the parties has not received notice and, therefore, is neither present nor represented. If a person received notice of a hearing and chose not to attend, then the hearing would not be called ex parte. Some jurisdictions expand the definition to include any proceeding that goes undefended, even though proper notice has been given. Ex patriate A person who has abandoned his or her country of origin and citizenship and has become a subject or citizen of another country. Ex post facto Latin: after the fact. Legislation is called ex post facto if the law attempts to extend backwards in time and punish acts committed before the date of the law's approval. Such laws are constitutionally prohibited in most modern democracies. For example, the USA Constitution prohibits "any ex post facto law". Expropriation Canada: the forced sale of land to a public authority. Synonymous to the USA doctrine of "eminent domain". Express trust A trust which is clearly created by the settlor, usually in the form of a document (eg. a will), although they can be oral. They are to be contrasted with trusts which come to being through the operation of the law and which do not result from the clear intent or decision of any settlor to create a trust (eg. constructive trust). Expunge To physically erase; to white or strike out. To "expunge" something from a court record means to remove every reference to it from the court file. Ex rel An abbreviation of "ex relatione", Latin for "on the relation of." Refers to 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" simply means that the attorney general of a state is prosecuting on the basis of a statement of a person other than the attorney general himself (or herself.) Extortion Forcing a person to give up property in a thing through the use of violence, fear or under pretense of authority. Extradition The arrest and delivery of a fugitive wanted for a crime committed in another country, usually under the terms of a extradition treaty. Ex turpi causa non oritur actio Latin: "Of an illegal cause there can be no lawsuit." In other words, if one is engaged in illegal activity, one cannot sue another for damages that arose out of that illegal activity. A example is an injury suffered by a passenger in a stolen car, which that passenger knew to be stolen and was a free participant in the joyriding. If vehicle crashes injuring the passenger, there is no action in tort against the driver under the ex turpi causa non oritur actio principle. |
FFair market valueThe hypothetical most probable price that could be obtained for a property by average, informed purchasers. Fee simple The most extensive tenure allowed under the feudal system allowing the tenant to sell or convey by will or be transfer to a heir if the owner dies intestate . In modern law, almost all land is held in fee simple and this is as close as one can get to absolute ownership in common law. Fee tail A form of tenure under the feudal system that could only be transferred to a lineal descendant. If there were no lineal descendants upon the death of the tenant, the land reverted back to the lord. Felony A serious crime for which the punishment is prison for more than a year or death. Crimes of less gravity are called misdemeanours . This term is no longer used in England or other Commonwealth countries but remains a major distinction in the United States. Historically, in England, the term referred to crimes for which the punishment was the loss of land, life or a limb. Feudal system A social structure that existed throughout much of Europe between 800 and 1400 and that revolved around a multi-level hierarchy between lords (who held land granted under tenure from the king), and their tenants (also called "vassals").Tenants would lease land from the lord in exchange for loyalty and goods or services, such as military assistance or money. In exchange, the tenant would be protected from attack. Fiduciary Normally, the term is synonymous to a trustee , which is the classic form of a fiduciary relationship. A fiduciary has rights and powers which would normally belong to another person. The fiduciary holds those rights which he or she must exercise to the benefit of the beneficiary. A fiduciary must not allow any conflict of interest to infect their duties towards the beneficiary and must exercise a high standard of care in protecting or promoting the interests of the beneficiary. Fiduciary responsibilities exist for persons other than trustees such as between solicitor and client and principal and agent. Fieri facias A writ of fieri facias commands a sheriff to take and sell enough property from the person who lost the law suit, to pay the debt owed by the judgment. Force majeure French for an act of God; an inevitable, unpredictable act of nature, not dependent on an act of man. Used in insurance contracts to refer to acts of nature such as earthquakes or lightning. Foreclosure The technical meaning of the word is to wipe out a right of redemption on a property. Generally, this is what happens when someone does not pay their mortgage. Even though there has been no payments, the borrower retains a equitable right of redemption if, some day, he or she were able to find the money and try to exercise their right of redemption . To clear the title of this potential, a lender goes to court, demonstrates the default, 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 generally refer to the lender's actions of repossessing and selling a property for default in mortgage payments. Fraud Deceitful conduct designed to manipulate another person to give something of value by (1) lying, (2) by repeating something that is or ought to have been known by the fraudulent party as false or suspect or (3) by 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. Freehold A special right granting the full use of real estate for an indeterminate time. It differs from leasehold, which allows possession for a limited time. There are varieties of freehold such as fee simple and fee tail. Freeholder A person who owns freehold property rights (i.e. in a piece of real estate; either land or a building). Fugitive One who runs away to avoid arrest, prosecution or imprisonment. Many extradition laws also call the suspect a "fugitive" although, in that context, it does not necessarily mean that the suspect was trying to hide in the country from which extradition is being sought. 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. Fungibles Goods which are comprised of many identical parts such as a bushel of grain or a barrel of apples or oil, and which can be easily replaced by other, identical goods. If the goods are sold by weight or number, this is a good sign that they are fungible. Furiosi nulla voluntas est A Latin expression that mentally impaired persons cannot validly sign a will. |
GGarnishmentThe seizing of a person's property, credit or salary, on the basis of a law which allows it, and for the purposes of paying off a debt. The person who possesses the assets of the debtor 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 percentages of their wages is subtracted directly off their pay-check and directed to the person in need of support (the employer being the garnishee). Gavel A wooden mallet used by a judge to bring proceedings to a start or to an end or to command attention in his or her court. General Agreement on Tariffs and Trade (GATT) Multilateral international treaty first created in 1947 and frequently amended (most recently in 1994) to which 125 countries subscribe. GATT provides 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. General counsel The senior lawyer of a corporation. This is normally a full-time employee of the corporation although some corporations contract this position out to a lawyer with a private firm. Gift over A device used in wills and trusts to provide for the gift of property to a second recipient if a certain event occurs, such as the death of the first recipient. For example, I give you my car but on your death you must give it to your child; that is a gift over to the benefit of your child. Goodwill An intangible business asset which includes a cultivated reputation and consequential attraction and confidence of repeat customers and connections. Grand Jury An American criminal justice procedure whereby, in each court district, a group of 16-23 citizens hold an inquiry on criminal complaints brought by the prosecutor and decide 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". Gross negligence Any action or an omission in reckless disregard of the consequences to the safety or property of another. Sometimes referred to as "very great negligence" and it is more then just neglect of ordinary care towards others or just inadvertence. Also known as the Latin term culpa lata. 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 An individual who, by legal appointment or by the effect of a written law, is given custody of both the property and the person of one who is unable to manage their own affairs, such as a child or mentally-disabled person. 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. Guillotine A device developed in France to inflict the death penalty through decapitation by the dropping of a weighted and sharp metal blade onto the restrained neck of a convict. |
HHabeas corpusLatin: a court petition which orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful. Habeas corpus was one of the concessions the British Monarch made in the Magna Carta and has stood as a basic individual right against arbitrary arrest and imprisonment. Habitual offender A person who is convicted and sentenced for crimes over a period of time and even after serving sentences of incarceration, such as demonstrates a propensity towards criminal conduct. Reformation techniques fail to alter the behaviour of the habitual offender. Many countries now have special laws that require the long-term incarceration, without parole, of habitual offenders as a means of protecting society in the face of an individual that appears unable to comply with the law. Harassment Unsolicited words or conduct which tend to annoy, alarm or abuse another person. An excellent alternate definition can be found in Canadian human rights legislation as: "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." Name-calling ("stupid", "retard" or "dummy") is a common form of harassment. (See also sexual harassment.) Hearsay Any evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them. For example, if Bob heard from Susan about an accident that Susan witnessed but that Bob had not, and Bob attempted to repeat Susan's story in court, it could be objected to as "hearsay." The basic rule, when testifying in court, is that you can only provide information of which you have direct knowledge. In other words, hearsay evidence is not allowed. Hearsay evidence is also referred to as "second-hand evidence" or as "rumor." You are able to tell a court what you heard, to repeat the rumor, and testify that, in fact, the story you heard was told to you, but under the hearsay rule, your testimony would not be evidence of the actual facts of the story but only that you heard those words spoken. 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). Homicide The word includes all occasions where one human being, by act or omission, takes away the life of another. Murder and manslaughter are different kinds of homicides. Executing a death-row inmate is another form of homicide, but one which is excusable in the eyes of the law. Another excusable homicide is where a law enforcement officer shoots and kills a suspect who draws a weapon or shoots at that officer. Hostile witness During an examination-in-chief, a lawyer is not allowed to ask leading questions of their own witness . But, 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 their own witness leading questions. Hung jury A jury is required to make a unanimous or near unanimous verdict . When the jurors, after full debate and discussion, are unable to agree on a verdict and are deadlocked with differences of opinion that appear to be irreconcilable, it is said to be a "hung jury". The result is a mistrial. Husband-wife privilege A special right that married persons have to keep communications between them secret and even inaccessible to a court of law. While this privilege may have been varied in some states, it has always been held to be lifted where one spouse commits a crime on the other. Similar to the client-solicitor privilege. |
IImmunityAn exemption that a person (individual or corporate) enjoys from the normal operation of the law such as a legal duty or liability, either criminal or civil. For example, diplomats enjoy "diplomatic immunity" which means that they cannot be prosecuted for crimes committed during their tenure as diplomat . Another example of an immunity is where a witness agrees to testify only if the testimony cannot be used at some later date during a hearing against the witness. Incorporeal Legal rights which are intangible such as copyrights or patents. Incorporeal hereditament An incorporeal right which is attached to property and which is inheritable. Easements and profits ` prendre are examples of incorporeal hereditaments as are hereditary titles such as those common in the United Kingdom. Indefeasible A right or title in property that cannot be made void, defeated or canceled by any past event, error or omission in the title. For example, certificates of title issued under a Torrens land titles system is said to be "indefeasible" because the government warrants that no interest burdens the title other than those on the certificate. This makes long and expensive title searches unnecessary. Indictable offence An offence which, in Canada, is more serious than those which can proceed by summary conviction. This is the Canadian equivalent to the USA "felony". Murder and treason are examples of crimes committed in Canada which would be indictable offences. These crimes are usually tried by federally-appointed judges and carry heavy sentences. Indictment USA: a formal accusation returned by a Grand Jury, that charges a person with a serious crime. It is on the basis of an indictment that an accused person must stand trial. Infanticide Murder of an infant soon after its birth. Injunction A court order that prohibits a party from doing something (restrictive injunction) or compels them to do something (mandatory injunction). In limine |
JJactitationA false boast designed to increase standing at the expense of another. This used to form the basis of an ancient legal petition called "jactitation of marriage" wherein 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 is a form of jactitation. J. D. Abbreviation for "juris doctor" or "doctor of jurisprudence" and the formal name given to the university law degree in the United States. It is a prerequisite to most bar admission exams. Joint and several liability Liability of more than one person for which each person may be sued for the entire amount of damages done by all. Joint custody A child custody decision which means that both parents share joint legal custody and joint physical custody. This is not very common and many professionals have taken to referring to "joint legal custody but sole maternal physical custody" as "joint custody". 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. Judicial review When a court decision is appealed, it is known as an "appeal." But there are many administrative agencies or tribunals which make decisions or deliver government services of one sort or another, the decisions of which can also be "appealed." In many cases, the "appeal" from administrative agencies is known as "judicial review" which is essentially a process where a court of law is asked to rule on the appropriateness of the administrative agency or tribunal's decision. Judicial review is a fundamental principle of administrative law. A distinctive feature of judicial review is that the "appeal" is not usually limited to errors in law but may be based on alleged errors on the part of the administrative agency on findings of fact. 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." Jurisdiction Refers to a court's authority to judge over a situation usually acquired in one of three ways: over acts committed in a defined territory (eg. the jurisdiction of the Supreme Court of Australia is limited to acts committed or originating in Australia), over certain types of cases (the jurisdiction of a bankruptcy court is limited to bankruptcy cases), or over certain persons (a military court has jurisdiction limited to actions of enlisted personnel). Jurisprudence Technically, jurisprudence means the "science of law". Statutes articulate the bland rules of law, with only rare reference to factual situations. The actual application of these statutes to 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. Jury A group of citizens randomly selected from the general population and brought together to assist justice by deciding which version, in their opinion, constitutes "the truth" given different evidence by opposing parties. Jus Latin: word which, in Roman law, meant the law or a right. Also spelt "ius" in some English translations. For example, public law was called "jus publicum" and private law was called "jus privatum." Jus spatiandi et manendi Latin: referring to a legal right of way, and to enjoyment, granted to the public but only for the purposes of recreation or education, such as upon parks or public squares. Very similar to an easement of which some courts have said a jus spatiandi is a special type. Justice Fairness. A state of affairs in which conduct or action is both fair and right, given the circumstances. In law, it more specifically refers to the paramount obligation to ensure that all persons are treated fairly. Litigants "seek justice" by asking for compensation for wrongs committed against them; to right the inequity such that, with the compensation, a wrong has been righted and the balance of "good" or "virtue" over "wrong" or "evil" has been corrected. |
KkinA blood or marriage relative; as in "next of kin" refers to the closest relative. |
LLachesA 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". Landlord A land or building owner who has leased the land, the building or a part of the land or building, to another person. 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. Law All the rules of conduct that have been approved by the government and which are in force over a certain territory and which must be obeyed by all persons on that territory (eg. the "laws" of Australia). Violation of these rules could lead to government action such as imprisonment or fine, or private action such as a legal judgement against the offender obtained by the person injured by the action prohibited by law. Synonymous to act or statute although in common usage, "law" refers not only to legislation or statutes but also to the body of unwritten law in those states which recognize common law. 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. Leading question A question which suggests an answer; usually answerable by "yes" or "no". For example: "Did you see David at 3 p.m.?" These are forbidden to ensure that the witness is not coached by their lawyer through his or her testimony. The proper form would be: "At what time did you see David?" Leading questions are only acceptable in cross-examination or where a witness is declared hostile. 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. Leasehold Real property held under a lease. 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). Legislation Written and approved laws. Also known as "statutes" or "acts ." In constitutional law, one would talk of the "power to legislate" or the "legislative arm of government" referring to the power of political bodies (eg: house of assembly, Congress, Parliament) to write the laws of the land. 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. Libel Defamation by writing such as in a newspaper or a letter. 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 artic |