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”).
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.
To take someone away from a place without that person’s consent or by fraud. See also ” kidnapping”.
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.
Latin: from the start.
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.
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.”
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.
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.
A bill which has passed through the various legislative steps required for it and which has become law, as in “an Act of Parliament.” 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.
Latin: refers to the parts or sections of a petition that speaks to the damages that were suffered and claimed by the plaintiff. The ad damnum part of a petition will usually suggest an amount in dollars that the plaintiff asks the court to award.
An attachment to a written document. For example, affidavits may be addendums to a petition as a petition may be an addendum to a writ.
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”.
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.
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).
Latin: forever; without limit; indefinitely.
Latin: for the suit. A person appointed only for the purposes of prosecuting or defending an action on behalf of another such as a child or mentally-challenged person. Also called a guardian ad litem.
Synonymous with “natural justice.” Administrative law is that body of law 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.
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.”
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.
Abbreviation for alternative dispute resolution.
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.
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.
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.
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.”
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.
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.
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.
To sell or give completely and without reserve; to transfer title to somebody else. A voluntary conveyance of property, especially real property.
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).
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.
The merging of two things together to form one such as the amalgamation of different companies to form a single company.
A citizen that has been officially asked by their country to live in another country in order to legally represent it.
Something which is not cast in stone; which can be changed or revoked, such as a will.
To change, to revise, usually to the wording of a written document such as legislation.
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.
Latin: an intention to contract.
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.
To date back; retroactively. To date a document to a time before it was written.
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” 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.
To ask a more senior court or person to review a decision of a subordinate court or person. In some countries 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”.
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.
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.
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.
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.
A debt that is not paid on the due date adds up and accumulates as “arrears”. For example, if you do not pay your rent, the debt still exists and is referred to as “arrears”. The same word is used to describe child or spousal maintenance or support which is not paid by the due date.
Some countries define “arson” as the intentional setting of a fire to a building in which people live; others include as “arson” the intentionally setting of a fire to any building. In either case, this is a very serious crime and is punishable by a long jail sentence.
The touching of another person with an intent to harm, without that person’s consent.
To give, to transfer responsibility, to another. The assignee (sometimes also called “assigns”) is the person who receives the right or property being given and the assignor is the person giving.
Attorn or Attornment
To consent, implicitly or explicitly, to a transfer of a right. Often used to describe a situation where a tenant, by staying on location after the sale of the leased property, accepts to be a tenant of the new landlord; or where a person consents to (“attorns to”) the jurisdiction of a court which would not have otherwise had any authority over that person.
An alternate word for 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.
French word now part of English criminal law terminology. Refers to an accused who cannot be tried for a crime because the record shows he has already been subjected to trial for the same conduct and was acquitted. If the accused maintains that the previous trial resulted in conviction, he or she pleads “autrefois convict.” “Autrefois attaint” is another similar term; “attainted” for a felony, a person cannot be tried again for the same offence.
A vinculo matrimonii
Latin: of marriage. The term is now used to refer to a final and permanent divorce.
Land accretion that occurs by the erosion or addition of one’s land by the sudden and unexpected change in a river stream such as a flash flood.
Latin: a mother’s brother. “Avuncular” refers to an uncle.
Intent to deceive. A person who intentionally tries to deceive or mislead another in order to gain some advantage.
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.
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.
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.
The person who temporarily transfers possession of property to another, the bailee, under a contract of bailment.
The formal condition of an insolvent person being declared bankrupt under law. The legal effect is to divert most of the debtor’s assets and debts to the administration of a third person, sometimes called a ” trustee in bankruptcy”, from which outstanding debts are paid pro rata. Bankruptcy forces the debtor into a statutory period during which his or her commercial and financial affairs are administered under the strict supervision of the trustee. Bankruptcy usually involves the removal of several special legal rights such as the right to sit on a board of directors or, for some professions that form part of the justice system, to practice, such as lawyers or judges. Commercial organizations usually add other non-legal burdens upon bankrupts such as the refusal of credit. The duration of “bankruptcy” status varies from state to state but it does have the benefit of erasing most debts even if they were not satisfied by the sale of the debtor’s assets.
A trust 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.
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 sometimes use the title “barrister and solicitor” even though, contrary to England, there is no legal distinction between the advising and litigating roles.”
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.
A judge in court session.
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).
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
Latin” all things being equal or unchanged.
When a person agrees to finance someone else’s lawsuit in exchange for a portion of the judicial award.
A person who has never voluntarily had sexual intercourse outside of marriage such as unmarried virgins.
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.
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.
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.
An order of a court to either do a certain thing or to appear before it to answer charges. The citation is typically used for lesser offences (such as traffic violations) because it relies on the good faith of the defendant to appear as requested, as opposed to an arrest or bail. The penalty for failing to obey a citation is often a warrant for the arrest of the defendant.
Law inspired by old Roman Law, the primary feature of which was that laws were written into a collection; codified, and not determined, as is common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
Something 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.
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.
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.
A maxim of the law to the effect that any person, individual or corporate, that wishes to ask or petition a court for judicial action, must be in a position free of fraud or other unfair conduct.
A right 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.
An amendment to an existing will. Does not mean that the will is totally changed; just to the extent of the codicil.
Property which has been committed to guarantee a loan.
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).
A secret agreement between two or more persons, who seem to have conflicting interests, to abuse the law or the legal system, deceive a court or to defraud a third party. For example, if the partners in a marriage agree to lie about the duration of their separation in order to secure a divorce.
A formal group of experts brought together on a regular or ad hoc basis to debate matters within 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.
A term of parliamentary law which refers to a body of one or more persons appointed by a larger assembly or society, to consider, investigate and/or take action on certain specific matters. A committee only has those powers which have been assigned to it by the constituent assembly. Most are merely created to study matters in detail and to then report to the larger group. This saves the larger assembly time when it meets and allows it to review and approve a greater number of items, relying on the committee’s report and recommendations. Committees are either standing or ad hoc (this latter kind is also known as a “special committee).
Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as “unwritten” law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a 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.
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).
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).
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.
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”.
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.
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”.
A statement made by a person suspected or charged with a crime, that he (or she) did, in fact, commit that crime.
A result achieved through negotiation whereby a hybrid solution is arrived at between parties to an issue, dispute or disagreement, 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.
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.
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.
An agreement between two or more persons to commit a criminal act. Those forming the conspiracy are called conspirators.
The basic law or laws of a nation or a state which sets out how that state will be organized by deciding the powers and authorities of government between different political units, and by stating 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 (the Republic of Ireland has a written constitution).
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.
Under the employment law of some countries, 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.
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).
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.
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.
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.
The negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred.
The 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.
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.
The formal decision of a criminal trial which finds the accused guilty. It is the finding of a judge or jury, on behalf of the state, that a person has, beyond reasonable doubt, committed the crime for which he, or she, has been accused. It is the ultimate goal of the prosecution and the result resisted by the defense. Once convicted, an accused may then be sentenced.
An 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.
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.
A public official who holds an inquiry into violent or suspicious deaths. A coroner has the power to summon people to the inquest.
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.
Officer of a corporation responsible for the official documents of the corporation such as the official seal, records of shares issued, and minutes of all board or committee meetings.
A legal entity, 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.
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.
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.
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”.
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.
A person to whom money, goods or services are owed by the debtor.
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.
Synonymous with adultery. In old English law, this was a claim for damages the husband could institute against the adulterer.
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.
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.
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.
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.
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.
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.
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.
“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.
A cash compensation ordered by a court to offset losses or suffering caused by another’s fault or negligence. Damages are a typical request made of a court when persons sue for breach of contract or tort.
Also known as capital punishment, 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.
A person who owes money, goods or services to another, the latter being referred to as the creditor.
The act of beheading a person, usually instantly such as with a large and heavy knife or by guillotine, as a form of capital punishment. This form of capital punishment is still in use in some Arab countries, notably Saudi Arabia.
The name given to the final and conclusive court order after the condition of a decree nisi is met.
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).
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.
To accept a document or an event as conclusive of a certain status in the absence of evidence or facts which would normally be required to prove that status. For example, in matters of child support, a decision of a foreign court could be “deemed” to be a decision of the court of another for the purpose of enforcement.
Latin: as a matter of fact; something which, 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.
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.
An attack on the good reputation of a person, by slander or libel.
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.”
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.
French for outside. In the context of legal proceedings, it refers to that which is irrelevant or outside the scope of the debate.
Latin: “of the law.” The term has come to describe a total adherence of the law. For example, a de jure government is one which has been created in respect of constitutional law 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.
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.
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”.
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.
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.
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.
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.
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.
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.
DevastavitLatin 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.
The transfer or conveyance of real property by will.
Dicta or dictum
Latin: an observation by a judge on a matter not specifically before the court or not necessary in determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of stare decisis. May also be called “obiter dictum.”
An official representative of a 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.
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.
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.
A term of maritime law where an officer or other seaman is either demoted in rank or deprived of a promotion.
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.
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.
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.
A proportionate distribution of profits made in the form of a money payment to shareholders, by a for-profit corporation. Dividends are declared by a company’s board of directors.
The final, legal ending of a marriage, by Court order.
Abbreviation for deoxyribonucleic acid. 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.
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.
A rule or principle or the law established through the repeated application of legal precedents.
The permanent residence of a person; a place to which, even if he or she were temporary absent, they intend to return. In law, it is said that a person may have many residences but only one domicile.
Used when referring to easements to specify that property (i.e. tenement) or piece of land that benefits from, or has the advantage of, an easement.
Latin: the qualified ownership of a landlord, not having possession or use of property but retaining ownership. Used in feudal English land systems to describe the King’s ownership of all the land, even though most of it was lent out to lords for their exclusive use and enjoyment.
Latin: the property rights of a tenant. While not owning the property in a legal sense, the tenant, as having dominion utile, enjoys full and exclusive possession and use of the property.
Donatio mortis causa
A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues. Such a gift is exempted from the estate of the deceased as property is automatically conveyed upon death. In most jurisdictions, real property cannot be transferred by these death-bed gifts.
Another word 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.
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.
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.
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.
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.
Latin: for so long as she remains unmarried.
Latin: for so long as she remains a widow.
A house which has separate but complete facilities to accommodate two families as either adjacent units or one on top of the other.
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).
A 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.
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.
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”.
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.
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.
A legal word which refers to all wages, benefits or other benefit received as compensation for holding some office or employment.
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.
A law or a statute; a document which is published as an enforceable set of written rules is said to be “enacted”.
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.
The transfer of money or property (usually as a gift) to a public organization for a specific purpose, such as medical research or scholarships.
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.
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.
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.
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.
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”.
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”.
The putting to death, by painless method, of a terminally-ill or severely debilitated person through the omission (intentionally withholding a life-saving medical procedure, also known as “passive euthanasia”) or commission of an act (“active euthanasia’). See also living will.
Proof of 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.
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”.
Something that excuses or justifies a wrong action.
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.
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.
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.
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”.
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).
To physically erase; to white or strike out. To “expunge” something from a court record means to remove every reference to it from the court file.
An abbreviation of “ex relatione”, Latin for “on the relation of.” 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.)
Forcing a person to give up property in a thing through the use of violence, fear or under pretense of authority.
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.
Fair market value
The hypothetical most probable price that could be obtained for a property by average, informed purchasers.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
A person who owns freehold property rights (i.e. in a piece of real estate; either land or a building).
One who runs away to avoid arrest, prosecution or imprisonment. Many extradition laws also call the suspect a “fugitive” although, in that context, it does not necessarily mean that the suspect was trying to hide in the country from which extradition is being sought.
Latin: an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created.
Goods 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.
The 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).
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.
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.
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.
An intangible business asset which includes a cultivated reputation and consequential attraction and confidence of repeat customers and connections.
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”.
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.
A person who pledges collateral for the contract of another, but separately, as part of an independently contract with the obligee of the original contract. Compare with “surety.”
An individual who, by legal appointment or by the effect of a written law, is given custodyof 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.
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.
Latin: 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.
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.
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.)
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.
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).
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.
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.
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.
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.
An 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.
Legal rights which are intangible such as copyrights or patents.
An incorporeal right which is attached to property and which is inheritable. Easements and profits ` prendre are examples of incorporeal hereditaments as are hereditary titles such as those common in the United Kingdom.
A right or title in property that cannot be made void, defeated or canceled by any past event, error or omission in the title. For example, 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.
An offence which is more serious than those which can proceed by summary conviction. Murder and treason are examples of crimes which would be indictable offences.
Murder of an infant soon after its birth.
A court order that prohibits a party from doing something (restrictive injunction) or compels them to do something (mandatory injunction).
Latin: at the beginning or on the threshold. A motion “in limine” is a motion that is tabled by one of the parties at the very beginning of the legal procedures.
In pari delicto
Latin: both parties are equally at fault. Actually, the usual use of this phrase is “in pari delicto, potior est conditio possidentis” which means that where both parties in a dispute are equally at wrong, the person in possession of the contested property will retain it (ie. the law will not intervene).
Latin: All legal rights are either in personam or in rem. An in personam right is a personal right attached to a specific person. In rem rights are property rights and enforceable against the entire world.
Latin: All legal rights are either in personam or in rem. In rem rights are proprietary in nature; related to the ownership of property and not based on any personal relationship, as is the case with in personam rights.
A person not able to pay his or her debts as they become due. “Insolvency” is a prerequisite to bankruptcy.
Latin: “among other things”, “for example” or “including”. Legal drafters would use it to precede a list of examples or samples covered by a more general descriptive statement. Sometimes they use an inter alia list to make absolutely sure that users of the document understand that the general description covers a certain element (which was covered in the general description anyway) without, in any way, restricting the scope of the general element to include other things that were not singled out in the inter alia list.
A temporary court order; intended to be of limited duration, usually just until the court has had an opportunity of hearing the full case and make a final order.
An addition of something to a document after it has been signed. Such additions are ignored unless they are initialed by the signatories and, if applicable, witnesses (eg. wills).
Proceedings taken during the course of, and incidental to a trial. Examples include procedures or applications made which are to assist a case in preparing its case or of executing judgment once obtained (eg. garnishment or judicial sale). These decisions intervene after the start of a suit and decide some issue other than the final decision itself.
An injunction which lasts only until the end of the trial during which the injunction was sought.
A person who, without legal right, runs a business (eg. without mandatory licenses), or who wrongfully interferes or intercepts another’s business.
A combination of treaties and customs which regulates the conduct of states amongst themselves. The highest judicial authority of international law is the International Court of Justice and the administrative authority is the United Nations.
Latin: between parties.
Dying without a will.
Latin: from one living person to another living person. For example, an inter vivos trust is one which the settlor sets up to take effect while he or she is still alive. It can be contrasted with the testamentary trust, which is to take effect only upon the settlor’s death. Another example is the sale of a life estate which can only occur between persons living; i.e. inter vivos.
To take effect, to result; to come into operation.
The law according to the Muslim faith and as interpreted from the Koran. Islamic law is probably best known for deterrent punishment, which is the basis of the Islamic criminal system and the fact that there is no separation of church and state. Under Islamic law, the religion of Islam and the government are one. Islamic law is controlled, ruled and regulated by the Islamic religion. Islamic law purports to regulate all public and private behavior including personal hygiene, diet, sexual conduct, and child rearing. Islamic law now prevails in countries all over the middle east and elsewhere covering twenty per cent of the world’s population.
A 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.
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.
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”.
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.
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.
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.”
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).
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.
A group of citizens randomly selected from the general population and brought together to assist justice by deciding which version, in their opinion, constitutes “the truth” given different evidence by opposing parties.
Latin: word which, in Roman law, meant the law or a right. Also spelt “ius” in some English translations. 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.
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.
A blood or marriage relative; as in “next of kin” refers to the closest relative.
A legal doctrine whereby those who take too long to assert a legal right, lose their entitlement to compensation. When you claim that a person’s legal suit against you is not valid because of this, you would call it “estoppel by laches”.
A land or building owner who has leased the land, the building or a part of the land or building, to another person.
An old English criminal and common law offence covering the unlawful or fraudulent removal of another’s property without the owner’s consent. The offence of theft now covers most cases of larceny. But larceny is wider than theft as it includes the taking of property of another person by whatever means (by theft, overtly , by fraud, by trickery, etc.) if an intent exists to convert that property to one’s own use against the wishes of the owner.
All the rules of conduct that have been approved by the government and which are in force over a certain territory and which must be obeyed by all persons on that territory (eg. the “laws” of Australia). Violation of these rules could lead to government action such as imprisonment or fine, or private action such as a legal judgement against the offender obtained by the person injured by the action prohibited by law. Synonymous to act or statute although in common usage, “law” refers not only to legislation or statutes but also to the body of unwritten law in those states which recognize common law.
A person that has been trained in the law and that has been certified to give legal advice or to represent others in litigation. Also known as a “barrister & solictor” or an attorney.
A question which suggests an answer; usually answerable by “yes” or “no”. For example: “Did you see David at 3 p.m.?” These are forbidden to ensure that the witness is not coached by their lawyer through his or her testimony. The proper form would be: “At what time did you see David?” Leading questions are only acceptable in cross-examination or where a witness is declared hostile.
A special kind of contract between a property owner and a person wanting temporary enjoyment and use of the property, in exchange for rent paid to the property owner. Where the property is land, a building, or parts of either, the property owner is called a landlord and the person that contracts to receive the temporary enjoyment and use is called a tenant.
Real property held under a lease.
A child custody decision which entails the right to make, or participate in, the significant decisions affecting a child’s health and welfare (compare with physical custody and joint custody).
Written and approved laws. Also known as “statutes” or “acts.” In constitutional law, one would talk of the “power to legislate” or the “legislative arm of government” referring to the power of political bodies (eg: house of assembly, Congress, Parliament) to write the laws of the land.
Any legal obligation, either due now or at some time in the future. It could be a debt or a promise to do something. To say a person is “liable” for a debt or wrongful act is to indicate that they are the person responsible for paying the debt or compensating the wrongful act.
Defamation by writing such as in a newspaper or a letter.
A form of construction which allows a judge to consider other factors when deciding the meaning of a phrase or document. For example, faced with an ambiguous article in a statute, a liberal construction would allow a judge to consider the purpose and object of a statute before deciding what the article actually means.
A special permission to do something on, or with, somebody else’s property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass. A common example is allowing a person to walk across your lawn which, if it were not for the license, would constitute trespass. Licenses are revocable at will (unless supported by a contract) and, as such, differs from an easement (the latter conveying a legal interest in the land). Licenses which are not based on a contract and which are fully revocable are called “simple” or “bare” licenses. A common example is the shopping mall to which access by the public is on the basis of an implied license.
A property right which remains attached to an object that has been sold, but not totally paid for, until complete payment has been made. It may involve possession of the object until the debt is paid or it may be registered against the object (especially if the object is real estate). Ultimately, a lien can be enforced by a court sale of the property to which it attached and then the debt is paid off from the proceeds of the sale.
A right to use and to enjoy land and/or structures on land only for the life of the life tenant. The estate reverts back to the grantor (or to some other person), at the death of the person to whom it is given. A property right to last only for the life of the life tenant is called the estate “pur sa vie.” If it is for the duration of the life of a third party, it is called an estate “pur autre vie”. The rights of the life tenant are restricted to conduct which does not permanently change the land or structures upon it.
The beneficiary of a life estate.
A unique colleague in a partnership relationship who has agreed to be liable only to the extent of his (or her) investment. Limited partners, though, have no right to manage the partnership. Limited partners are usually just investors or promoters who seek the tax benefits of a partnership
Adjacent, bordering or contiguous.
A person who is a direct descendant such as a child to his or her natural parent.
The selling of all the assets of a debtor and the use of the cash proceeds of the sale to pay off creditors.
Latin: a dispute or matter which is the subject of ongoing or pending litigation. Politicians will sometimes refuse to discuss a matter or an issue which is “lis pendens” because they do not want their comments to be perceived as an attempt to influence a court of law.
A form of construction which does not allow evidence extrapolated beyond the actual words of a phrase or document but, rather, takes a phrase or document at face value, giving effect only to the actual words used. Also known as “strict” or “strict and literal” construction. Contrasts with liberal construction (which allows for the input from other factors such as the purpose of the document being interpreted).
A dispute is in “litigation” ( or being “litigated”) when it has become the subject of a formal court action or law suit.
Delivery. An archaic legal word from the feudal system referring to the actual legal transmission of possession of an object to another. For example, a knight would obtain an estate in land as tenure in exchange for serving in the king’s army for 40 days a year. The king would give exclusive possession of the land, (i.e. “livery”) to the knight. A writ of livery also developed which allowed persons to sue for possession of land under the feudal system. Livery (or “delivery”) of the land was important in completing legal possession or, as it was known in the feudal system, seisin.
A document that sets out guidelines for dealing with life-sustaining medical procedures in the eventuality of the signatory’s sudden debilitation. Living wills would, for example, inform medical staff not to provide extraordinary life-preserving procedures on their bodies if they are incapable of expressing themselves and suffering from an incurable and terminal condition.
LL.B., L.M. or LL.D.
The Latin abbreviations for the three classes of law degrees: the regular bachelor degree in law (LL.B.), the masters degree in law (LL.M.) and the doctorate in law (LL.D.). These are basic prerequisites to admission to the practice of law in many states.
Latin for “the place.” For example, lawyers talk of the “locus delicti” as the pace where a criminal offense was commited or “loco parentis” to refer to a person who stands in the place of a parent such as a step-parent in a common law relationship.
Long arm statutes
Each court is bound to a territorial jurisdiction and does not normally have jurisdiction over persons that reside outside of that jurisdiction. For example, a court in Scotland would not normally have jurisdiction over a resident of Ireland. Long-arm statutes are a tool which gives a court jurisdiction over a person even though the person no longer resides in the territory limits of the court. For example, UIFSA allows a court to have jurisdiction over a non-resident support payor.
Charter to which subscribed King John of England on June 12, 1215 in which a basic set of limits were set on the King’s powers. King John had ruled tyrannically. His barons rebelled and committed themselves to war with King John unless he agreed to the Charter. Held to be the precursor of habeas corpus as Article 39 of the Magna Carta held that no man shall be “imprisoned, exiled or destroyed … except by lawful judgment of his peers or by the law of the land”.
Refers to the obligation of one person to contribute, in part or in whole, to the cost of living of another person. Maintenance is usually expressed in a currency amount per month as in “$450 a month maintenance.” Some countries prefer the words “support” (spousal or child) or “alimony” but they all mean the same thing.
Doing something which is illegal. Compare with misfeasance and nonfeasance.
A writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Accidental homicide or homicide which occurs without an intent to kill, and which does not occur during the commission of another crime or under extreme provocation.
A very specific body of law peculiar to transportation by water, seamen and harbors.
The state-recognized, voluntary and exclusive contract for the lifelong union of two persons. Most countries do not recognize marriage between same-sex couples or polygamous marriages.
A unique way to organize a business where the property is bought by, or transferred to, a trustee (such as a trust company) and the trustee issues trust “units”, which the investors, or their designates, hold as beneficiaries. This is a common way to structure a large real estate purchase.
The legal state of being married. Ecclesiastics talk of the “holy” state of matrimony.
The most popular form of alternative dispute resolution (ADR), mediation involves the appointment of a mediator who acts as a facilitator assisting the parties in communicating, essentially negotiating a settlement. The mediator does not adjudicate the issues in dispute or to force a compromise; only the parties, of their own volition, can shift their position in order to achieve a settlement. The result of a successful mediation is called a “settlement.” Compare with arbitration.
Abbreviation fo “Memorandum of Understanding.” A document which, if meeting the other criteria, can be, in law, a contract. Generally, in the world of commerce or international negotiations, a MOU is considered to be a preliminary document; not a comprehensive agreement between two parties but rather an interim or partial agreement on some elements, in some cases a mere agreement in principle, on which there has been accord. Most MOU’s imply that something more is eventually expected.
Latin for “guilty mind.” Many serious crimes require the proof of “mens rea” before a person can be convicted. In other words, the prosecution must prove not only that the accused committed the offence but that he (or she) did it knowing that it was prohibited; that their act (or omission) was done with an intent to commit a crime.
A person who is legally underage. It varies between 21 and 18 years of age. Each state sets an age threshold at which time a person is invested with all legal rights as an adult. For many new adults, this may mean access to places serving alcohol and the right to purchase and consume alcohol, smoke cigarettes and drive a car. But there are many other legal rights which a minor does not have such as, in some states, the right to own land, to sign a contract or to get married.
The official record of a meeting. Some minutes include a summary (not verbatim) of the discussion along with any resolutions. Other minutes just contain a record of the decisions. Minutes start off with the name of the organization, the place and date of the meeting and the name of those person’s present. Minutes are prepared by the corporate secretary and signed by either the president or secretary.
Also known as the “Miranda Rule, this is the name given to the requirement that police officers, in the U.S.A., must warn suspects upon arrest that they have the right to remain silent, that any statement that they make could be used against them in a court of law, that they have the right to contact a lawyer and that if they cannot afford a lawyer, that one will be provided before any questioning is so desired. Failure to issue the Miranda warning results in the evidence so obtained to not be admissible in the court. The warning became a national police requirement when ordered by the US Supreme Court in the 1966 case Miranda v. Arizona and that is how it got the name.
Improperly doing something which a person has the legal right to do. Compare with malfeasance and nonfeasance.
When a person has been named as a party to a law suit when that person should not have been added. When this is asserted, a court will usually accommodate a request to amend the court documents to strike, or substitute for, the name of the mis-joined party. Compare with non-joinder.
A false and material statement which induces a party to enter into a contract. This is a ground for rescission of the contract.
A partial or complete trial which is found to be null and void and of no effect because of some irregularity. The sudden end of trial before it would ordinarily end because of some reason which invalidates it. Once a mistrial is declared, the situation is as if the trial had never occurred. Some common reasons for a mistrial include a deadlocked jury, the death of a juror or a serious procedural and prejudicial mistake made at the trial which cannot be corrected.
These are facts that, while not negating an offence or wrongful action, tend to show that the defendant may have had some grounds for acting the way he/she did. For example, assault, though provoked, is still assault but provocation may constitute mitigating circumstances and allow for a lesser sentence.
Mitigation of damages
A person who sues another for damages has a responsibility to minimize those damages, as far as reasonable. For example, in a wrongful dismissal suit, the person that was fired should make some effort to find another job so as to minimize the economic damage on themselves.
Latin: method of operation. Used by law enforcement officials to refer to a criminal’s preferred method of committing crime. For example, car thief “George” may have a break and enter technique that leaves a long scratch mark on the door. Upon discovery of a stolen vehicle with such a mark, the law enforcement officials might include “George” in the list of suspects because the evidence at the crime scene is consistent with his “modus operandi.”
Half of something. For example, it can be said that joint tenants hold a moiety in property. In old criminal law, there were “moiety acts” which allowed half of the fine money to be handed over to the informer.
A commercial advantage enjoyed by only one or a select few companies in which only those companies can trade in a certain area. Some monolopoies are legal, such as those temporarily created by patents. Others are secretly built by conspiracy between two or more companies and are prohibited by law.
Also called a “moot point”: a side issue, problem or question which does not have to be decided to resolve the main issues in a dispute.
Fictional or hypothetical trial, usually hosted by law schools, as training for future barristers or litigators.
The temporary suspension of legal action against a person.
An interest given on a piece of land, 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. In some jurisdictions, it entails a conveyance of the land until the debt is paid in full. The person lending the money and receiving the mortgage is called the mortgagee; the person who concedes a mortgage as security upon their property is called a mortgagor.
Intentional homicide (the taking of another person’s life), without legal justification or provocation.
A group or race of people that share history, traditions and culture. The United Kingdom is comprised of four nations or national groups: the English, Scots, Irish and Welsh. It is common English to use the word “nation” when referring to what is known in law as “states.”
A tenet of international trade agreements whereby nations must afford imported goods the same treatment that they afford domestic or “national” products (no discrimination).
A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply. The principles of natural justice were derived from the Romans who believed that some legal principles were “natural” or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions.
An international trade instrument; “non circumvention/non disclosure agreement” used in the preliminary stages of a business transaction where the Seller and Buyer do not know each other, but are brought into contact with each other by one or more intermediaries (also known as brokers or middlemen), to fulfill the transaction. Non Circumvention/Non Disclosure Agreements ensure that the intermediaries in the transaction are not cicumvented and excluded from the transaction by the Buyer and/or Seller and/or the other intermediaries. Many trade transactions are chain-like. Product flows like this: seller-broker-broker-broker-buyer. The brokers in the middle use NCND-As to ensure that they are not circumvented by anyone else in the chain; also, to ensure that information on the other parties in the chain is not disclosed to outside parties. They are valid for a specified term; usually two years.
Not only are people responsible for the intentional harm they cause, but their failure to act as a reasonable person would be expected to act in similar circumstances (i.e. “negligence”) will also give rise to compensation. Negligence, if it causes injury to another, can give rise to a liability suit under tort. Negligence is always assessed having regards to the circumstances and to the standard of care which would reasonably be expected of a person in similar circumstances. Everybody has a duty to ensure that their actions do not cause harm to others. Between negligence and the intentional act there lies yet another, more serious type of negligence which is called gross negligence. Gross negligence is any action or an omission in reckless disregard of the consequences to the safety or property of another. See also contributory negligence and comparative negligence.
To communicate on a matter of disagreement between two parties, with a view to first listen to the other party’s perspective and to then attempt to arrive at a resolution by consensus.
Nemo judex in parte sua
Latin and a fundamental principle of natural justice which states that no person can judge a case in which he or she is party. May also be called nemo judex in sua causa or nemo debet esse judex in propria causa.
Next of kin
The nearest blood relative of a deceased. The expression has come to describe those persons most related to a dead person and therefore set to inherit the decesased’s property.
Latin for “I will not defend it.” Used primarily in criminal proceedings whereby the defendant declines to refute the evidence of the prosecution. In some jurisdictions, this response by the defendant has same effect as a plea of guilty.
Non est factum
Latin for “not his deed” and a special defense in contract law to allow a person to avoid having to respect a contract that she or he signed because of certain reasons such as a mistake as to the kind of contract. For example, a person who signs away the deed to a house, thinking that the document signed was only a guarantee for another person’s debt, might be able to plead non est factum in a court and on that basis get the court to void the contract.
Not doing something that a person should be doing. Compare with malfeasance and misfeasance.
When a person who should have been made a party to a legal proceedings has been forgotten or omitted. This is usually addressed by asking the court to amend documents and including the forgotten party to the proceedings. It is the opposite of mis-joinder.
Also known as “notary public”: a legal officer with specific judicial authority to attest to legal documents usually with an official seal. Most countries do not have notaries vesting administrative legal authority in lawyers or court officers. Jurisdictions which do have notaries include the Canadian provinces of Quebec and British Columbia and Australia.
In spite of, even if, without regard to or impediment by other things.
Substitute a new debt for an old debt cancelling the old debt. (Compare with “subrogation”)
A contract-law term which stands for those agreements which are without consideration, such as a unilateral undertaking, which may bind a person morally, but not under contract law, in those jurisdictions which still require consideration.
Excessive or unlawful use of one’s property to the extent of unreasonable annoyance or inconvenience to a neighbor or to the public. Nuisance is a tort.
Nunc pro tunc
Latin: now for then. It refers to the doing of something late (after it should have been done in the first place), with effect as if it had been done on time
A religious or solemn affirmation to tell the truth or to take a certain action.
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 referred to as “dicta” or “dictum.”
The person who is to receive the benefit of someone else’s obligation; that “someone else” being the obligor. Also called a “promisee.” Some countries refer to the recipient of family support as an “obligee”.
A person who is contractually or legally, committed or obliged, to providing something to another person; the recipient of the benefit being called the obligee. Also known as the “promisor.”
An elusive concept used in the context of criminal law to describe a publication which is illegal because it is morally corruptive. The common law has struggled with this word as society has evolved towards greater tolerance of alternative sexual behavior. Historically, it included any lewd material which had no apparent social value, which was offensive to contemporary community standards of decency, and even material which tended to invoke impure sexual thoughts.
An act which tends to impede or thwart the administration of justice. Examples include trying to bribe a witness or juror or providing law enforcement officers with information known to be false.
A crime; any act which contravenes the criminal law of the state in which it occurs. Spelled “offence” in Commonwealth countries.
A explicit proposal to contract which, if accepted, completes the contract and binds both the person that made the offer and the person accepting the offer to the terms of the contract. See also “acceptance”.
A person whose occupation consists of investigating customer complaints against his or her employer. Many governments have ombudsmen who will investigate citizen complaints against government services.
A draft law before a legislature which contains more than one substantive matter, or several minor matters which have been combined into one bill, ostensibly for the sake of convenience. The omnibus bill is an “all or nothing” tactic.
Latin: the burden. It is usually used in the context of evidence. The onus of proof in criminal cases lies with the state. It is the state that has the burden of proving beyond reasonable doubt. In civil cases, the onus of proof lies with the plaintiff who must prove his case by balance of probabilities. So “onus” refers both to the party with the burden, and to the scope of that burden, the latter depending whether the context is criminal or civil.
An agreement or contract which does not have an ending date but which will continue for as long as certain conditions, identified in the agreement, exist.
A formal written direction given by a member of the judiciary; a court decision without reasons.
An executive decision of a government which has not been subjected to a legislative assembly (contrary to a statute). It is often detailed and not, as would be a statute, of general wording or application. This term is in disuse in many jurisdictions and the words “regulations” or “bylaws” are preferred.
A person who has lost one or both of his or her natural parents.
An agreement between two litigants to settle a matter privately before the Court has rendered its decision.
A person who is not a lawyer or is not acting in that capacity but who provides a limited number of legal services. Each country differs in the authority it gives paralegals in exercising what traditionally would be lawyers’ work.
A pardon is a government decision to allow a person who has been convicted of a crime, to be free and absolved of that conviction, as if never convicted. It is typically used to remove a criminal record against a good citizen for a small crime that may have been committed during adolescence or young adulthood. Although procedures vary from one state to another, the request for a pardon usually involves a lengthy period of time of impeccable behavior and a reference check. Generally speaking, the more serious the crime, the longer the time requirement for excellent behavior.
Latin: A British common law creation whereby the courts have the right to make unfettered decisions concerning people who are not able to take care of themselves. For example, court can make custody decisions regarding a child or an insane person, even without statute law to allow them to do so, based on their residual, common law-based parens patriae jurisdiction.
Latin for “of equal fault.” For example, if two parties complain to a judge of the non-performance of a contract by the other, the judge could refuse to provide a remedy to either of them because of “pari delicto”: a finding that they were equally at fault in causing the contract’s breach.
Latin: Equitably and without preference. This term is often used in bankruptcy proceedings where creditors are said to be “pari passu” which means that they are all equal and that distribution of the assets will occur without preference between them.
An early release from incarceration in which the prisoner promises to heed certain conditions (usually set by a parole board) and under the supervision of a parole officer. Any violation of those conditions would result in the return of the person to prison.
Killing one’s father or another a family member or close relative.
A business organization in which two or more persons carry on a business together. Partners are each fully liable for all the debts of the enterprise but they also share the profits exclusively. Many states have laws which regulate partnerships and may, for example, require some form of registration and allow partnership agreements. One of the basic advantages of partnerships is that they tend to allow business losses to be deducted from personal income for tax purposes (see also limited partner).
Par value shares
Shares issued by a company which have a minimum price. Shares which are without par value or “non par value shares” are shares which may be sold at whatever price the company’s board of directors decides.
An exclusive privilege granted to an inventor to make, use or sale an invention for a set number of years. Normally, no one company can retain a monopoly over a product or service because this is considered to economically harmful to society. But as a financial incentive to potential inventors, the state grants a temporary monopoly to that inventor through the issuance of a patent.
Being a father. “Paternity suits” are launched when a man denies paternity of a child born out of wedlock. New technology of DNA testing can establish paternity thus obliging the father to provide child support.
The person to whom payment is addressed or given. In family law, the term usually refers to the person who receives or to whom support or maintenance is owed. In commercial law, the term refers to the person to whom a bill of exchange is made payable. On a regular check, the space preceded with the words “pay to the order of” identifies the payee.
The person who is making the payment(s). Again, in the context of family law, the word would typically refer to the person to a support or maintenance debtor. In commercial law, the word refers to the person who makes the payment on a check or bill of exchange.
A person afflicted with “pedophilia”, a sexual perversion in which children are preferred as sexual partner.
An electronic surveillance device which attaches to a phone line and which registers every number dialed from a specific telephone. This surveillance device is not as effective as wire-tapping.
Latin: during litigation. For example, if the validity of a will is challenged, a court might appoint an administrator pendente lite with limited powers to do such things as may be necessary to preserve the assets of the deceased until a hearing can be convened on the validity of the will. Another example is an injunction pendente lite, to last only during the litigation and, again, designed simply to preserve something until the decisive court order is issued.
Water which seeps or filters through the ground without any definite channel and not part of the flow of any waterway. The best example is rain water.
Final or absolute or not open to challenge. An adjournment to a date which is set to be “peremptory” means that ther matter will go ahead on that date with no further applications for adjournment to be granted.
An intentional lie given while under oath or in a sworn affidavit.
The recording of evidence when it is feared that the person with that evidence may soon die or disappear and that this person’s evidence, if recorded, could then be used in the future to prevent a possible injustice or to support a future claim of property.
Forever; of unlimited duration. There is a strong bias in the law against things that are to last in perpetuity. Rights that are to last forever are said to hinder commerce as an impediment to the circulation of property. That is why there is a rule against perpetuities.
An entity with legal rights and existence including the ability to sue and be sued, to sign contracts, to receive gifts, to appear in court either by themselves or by lawyer and, generally, other powers incidental to the full expression of the entity in law. Individuals are “persons” in law unless they are minors or under some kind of other incapacity such as a court finding of mental incapacity. Many laws give certain powers to “persons” which, in almost all instances, includes business organizations that have been formally registered such as partnerships, corporations or associations.
In the law of wills, this is the general name given to the person who administers the estate of a deceased person. There are two kinds of personal representatives. Where a person dies without a will, the court must appoint an administrator. Where a personal representative is named in a will, the personal representative is known as an executor.
The formal, written document submitted to a court, and which asks for the court to redress what is described in the petition as being an injustice of some kind. Petitions set out the facts, identifies the law under which the court is being asked to intervene, and ends with a suggested course of action for the court to consider (eg. payment of damages to the plaintiff). Petitions are normally filed by lawyers because courts insist on complicated forms but most states will allow citizens to file petitions provided they conform to the court’s form. Some states do not use the word “petition” and, instead, might refer to an “application”, a “complaint” or the “writ.”
A petty or underhanded lawyer or an attorney who sustains a professional livelihood on disreputable or dishonorable business. The word has also taken on an common usage definition referring to anyone prone to quibbling over details.
A minor crime and for which the punishment is usually just a small fine or short term of imprisonment.
A child custody decision which grants the right to organize and administer the day to day residential care of a child. This is usually combined with legal custody.
The Personal Injuries Assessment Board which is an independent statutory body in Ireland that deals with personal injury claims.
To object publicly, on or adjacent to the employer’s premises, to an employer’s labor practices, goods or services. The most common form of picketing is patrolling with signs.
A medieval punishment and restraining device made of moveable and adjustable boards through which a prisoner’s head or limbs were pinned. Pillories were often fixed to the ground in a city’s main square and on market days, local criminals were exhibited. Citizens were given license to throw things at the prisoners. As such, this method of punishment was not just humiliating but often led to serious injury or death. For the government, this was a public statement serving to warn others of the consequences of crime. England abolished the pillory as a form of punishment in 1837.
The person who brings an case to court; who sues. May also be called “claimant”, “petitioner” or “applicant. The person being sued is generally called the “defendant” or the “respondent.”
Negotiations during a criminal trial, between an accused person and a prosecutor in which the accused agrees to admit to a crime (sometimes a lesser crime than the one set out in the original charge), avoiding the expense of a public trial, in exchange for which the prosecutor agrees to ask for a more lenient sentence than would have been recommended if the case had of proceeded to full trial. The normal rule of law is that judges are not bound by plea bargains although, as past lawyers themselves, they are generally aware of plea bargains and a reasonable recommendation of a prosecutor on sentencing is always heavily considered.
That part of a party’s case in which he or she formally sets out the facts and legal arguments which support that party’s position. Pleadings can be in writing or they can be made verbally to a court, during the trial.
To kill or take an animal or fish from the property of another.
Being married to more than one person. Illegal in most countries.
A lie-detector machine which records even the slightest variation in blood pressure, body temperature and respiration as questions are put to, and answers elicited from a subject.
A rule of contract law that makes an exception to the general rule that an acceptance is only created when communicated directly to the offeror. An acceptance is binding and the contract is said to be perfected when the acceptor places this acceptance in the mail box for return mail even if, in fact, it never reaches the offeror. An 1892 British case summarized it as follows: “Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.”
Power of attorney
A document which gives a person the right to make binding decisions for another, as an agent. A power of attorney may be specific to a certain kind of decision or general, in which the agent makes all major decisions for the person who is the subject of the power of attorney. The person signing the power of attorney is usually referred to, in law, as the donor and the person that would exercise the power of attorney, the donee.
Præcipe or precipe
Latin: used to refer to the actual writ that would be presented to a court clerk to be officially issued on behalf of the court but now mostly refers to the covering letter from the lawyer (or plaintiff) which accompanies and formally asks for the writ to be issued by the court officer. The precipe is kept on the court file, but does not accompany the writ when the latter is served on the defendant.
An offence against the King or Parliament, in old English law, which led to serious penalties but not capital punishment.
Words that express a wish or a desire rather than a clear command. “Precatory words” are often found in trusts or wills and cause great difficulties when courts try to find the real intention of the settlor or testator, For example, the words “all my property to my wife to be disposed of as she may deem just and prudent in the interest of my family” were found to be “precatory” and did not constitute a trust for family members other than the wife.
A case which establishes legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court. Precedent form the basis of the theory of stare decisis which prevent “reinventing the wheel” and allows citizens to have a reasonable expectation of the legal solutions which apply in a given situation.
A share in a company that has some kind of special right or privilege attached to it, such as that it is distinguished from the company’s common shares. The most common special right is a preference over holders of common shares when dividends are declared. Another, is for the preferred shares to be redeemable at the option of either the holder or the company. Still another might be to disallow voting rights to preferred shareholders. Depending on the local laws in your state, there may be no limit to the qualifications a company can attach to preferred shares. For example, a family company may only allow holders of preferred shares to use a recreational property belonging to the company.
A word describing evidence that persuades a judge or jury to lean to one side as opposed to the other during the course of litigation. In many states, criminal trials require evidence beyond a reasonable doubt. But in civil trials, evidence is required only by preponderance of the evidence. The judge (or jury, where applicable) will perceive the evidence of one side as outweighing the other based on which side has the most persuasive or impressive evidence. The strength or “weight” of evidence is not decided by the sheer number of witnesses because the judge decides on the credibility of witnesses and give their testimony weight accordingly. The side with the preponderance of evidence wins the case.
A method of acquiring rights through the silence of the legal owner. Known in common law jurisdiction as “statute of limitations.” When used in a real property context, the term refers to the acquisition of property rights, such as an easement, by long and continued use or enjoyment. The required duration of continued use or enjoyment, before legal rights are enforceable, is usually written in a state’s law known as “statute of limitations.”
Presumption of advancement
A presumption in trust, contract and family law which suggests that property transferred from a parent to a child, or spouse to spouse, is a gift and would defeat any presumption of a resulting trust.
(Latin) A legal presumption which means “on the face of it” or “at first sight”. Law-makers will often use this device to establish that if a certain set of facts are proven, then another fact is established prima facie. For example, proof of mailing a letter is prima facie proof that it was received by the person to whom it was addressed and will accepted as such by a court unless proven otherwise. Other situations may require a prima facie case before proceeding to another step in the judicial process so that you would have to at least prove then that at first glance, there appears to be a case.
An agent’s master; the person for whom an agent has received instruction and to whose benefit the agent is expected to perform and make decisions.
Law which regulates the relationships between individuals. Family, commercial and labor law are examples of private law because the focus of those kinds of laws is the relationships between individuals or between corporations or organizations and individual, with the government a bystander. They are the counter part to public law.
A special and exclusive legal advantage or right such as a benefit, exemption, power or immunity. An example would be the special privileges that some persons have in a bankruptcy to recoup their debts from the bankrupt’s estate before other, non-privileged creditors.
The formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will. A “probate court” is a name given to the court that has this power to ratify wills.
A kind of punishment given out as part of a sentence which means that instead of jailing a person convicted of a crime, a judge will order that the person reports to a probation officer regularly and according to a set schedule. It is a criminal offence not to obey a probation order and is cause for being immediately jailed. If someone is “on probation”, that means that they are presently under such a Court order. These orders may have special conditions attached to them such as not to leave the city, drink alcohol, consume drugs, not to go to a specific place or contact a certain person.
Provided for free. Pro bono publico means “for the public good.”
Profit à prendre
A servitude which resembles an easement and which allows the holder to enter the land of another and to take some natural produce such as mineral deposits, fish or game, timber, crops or pasture.
As a matter of form; in keeping with a form or practice. Something done pro forma may not be essential but it facilitates future dealings. For example, an invoice might be sent to a purchaser even before the goods are delivered as a matter of business practices.
A legal restriction against the use of something or against certain conduct.
A person whom is to be the beneficiary of a promise, an obligation or a contract. Synonymous to “obligee.”
The person who has become obliged through a promise (usually expressed in a contract) towards another, the intended beneficiary of the promise being referred to as the promisee. Also sometimes referred to a “obligor.”
An unconditional, written and signed promise to pay a certain amount of money, on demand or at a certain defined date in the future. Contrary to a bill of exchange, a promissory note is not drawn on any third party holding the payor’s money; it is a direct promise from the payor to the payee.
Property is commonly thought of as a thing which belongs to someone and over which a person has total control. But, legally, it is more properly defined as a collection of legal rights over a thing. These rights are usually total and fully enforceable by the state or the owner against others. It has been said that “property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases.” before laws were written and enforced, property had no relevance. Possession was all that mattered. There are many classifications of property, the most common being between real property or immoveable property (real estate such as land or buildings) and “chattel”, or “moveable” (things which are not attached to the land such as a bicycle, a car or a hammer) and between public (property belonging to everybody or to the state) and private property.
Nearness in place; close-by. Also used to describe relationships as synonymous for “kin.”
As a possessor. For example, a person may exercise certain rights over a thing not as owner but pro possessore: as a person who possesses, but does not own, the thing.
To offer a document as being authentic or valid. Used mostly in the law of wills; to propound a will means to take legal action, as part of probate, including a formal inspection of the will, by the court.
Latin: to divide proportionate to a certain rate or interest. For example, if a company with two shareholders, one with 25% and the other with 75% of the shares, received a gift of $10,000 and desired to split it “pro rata” between the shareholders, the shareholder with 25% of the shares would receive $2,500 and the 75% shareholder, $7,500.
Latin: in one’s personal behalf. Contrast with pro socio.
Latin: on behalf of a partner; not on one’s personal behalf.
To bring judicial proceedings against a person and to administer them until the conclusion of the court proceedings. Lawyers are hired by the government to administer the prosecution of criminal charges in the courts.
A document in which a corporation sets out the material details of a share or bond issue and inviting the public to invest by purchasing these financial instruments.
A person who offers sexual intercourse for hire.
Latin: something done temporarily only and not intended to be permanent.
A right which is signed-over to an agent. Proxies are used frequently at annual meetings of corporations where the right to exercise a vote is “proxied” from the shareholder to the agent.
A term of copyright law referring to works that are not copyright protected, free for all to use without permission. Examples include works that were originally non-copyrightable (items that by their very nature are not eligible for copyright such as ideas, facts or names), copyright that has been lost or expired, where copyright is owned or authored by the federal government (federal documents and publications are not copyrighted and so are public domain), and those works which have been specifically granted to the public domain.
Those laws which regulate (1) the structure and administration of the government, (2) the conduct of the government in its relations with its citizens, (3) the responsibilities of government employees and (4) the relationships with foreign governments. Good examples are criminal and constitutional law. It can be distinguished from private law, which regulates the private conduct between individuals, without direct involvement of the government. For example, an unsolicited punch in the nose would constitute a crime for which the government would prosecute under criminal law but for which there would also be a private legal action possible by the injured party under tort law, which is private law although governments can be held responsible under tort law. As you can see, the line is often hard to draw between public and private law.
Special and highly exceptional damages ordered by a court against a defendant where the act or omission which caused the suit, was of a particularly heinous, malicious or highhanded nature. Where awarded, they are an exception to the rule that damages are to compensate not to punish. The exact threshold of punitive damages varies from jurisdiction to jurisdiction. In some countries, and in certain circumstances, punitive damages might even be available for breach of contract cases but, again, only for the exceptional cases where the court wants to give a strong message to the community that similar conduct will be severely punished. They are most common in intentional torts such as rape, battery or defamation. Some jurisdictions prefer using the word “exemplary damages” and there is an ongoing legal debate whether there is a distinction to be made between the two and even with the concept of aggravated damages.
Latin: amount or extent.
Latin for “as much as is deserved.” This is a legal principle under which a person should not be obliged to pay, nor should another be allowed to receive, more than the value of the goods or services exchanged.
Refers to decisions made by administrative tribunals or government officials to which the rules of natural justice apply. In judicial decisions, the principles of natural justice always apply. But between routine government policy decisions and the traditional court forums lies a hybrid, sometimes called a “tribunal” or “administrative tribunal” and not necessarily presided 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 “judicial” because it directly affects the legal rights of a person. Some law teachers sugest that there is no such thing as a “quasi-judicial” decision or body; the body or decision is either judicial or not.
Quid pro quo
Latin: something for something. The giving of something in exchange for another thing of equal value.
The number of people who must be present at a meeting before business can be conducted. Without “quorum”, decisions are invalid. Many organizations have a quorum requirement to prevent decisions being taken without a majority of members present.
Latin and referring to a special legal procedure taken to stop a person or organization from doing something for which it may not have the legal authority, by demanding to know by what right they exercise the controversial authority.
Money paid to have a kidnapped person released.
Sex with a woman, other than a wife, without her consent. But many states have changed this basic definition to include sex with a minor (with or without consent; also known as statutory rape), sex with a man without his consent, or exempting men who force their wives to have sex.
Immoveable property such as land or a building or an object that, though at one time a chattel, has become permanently affixed to land or a building.
Usually, every element of a case must be proven to a judge or a jury. The exception is a “presumption”, which means that if certain other facts are proven, then another fact can be taken for granted by the judge (or jury). For example, in some states, an adult caught having intercourse with a minor is presumed as having known that the minor was under-age. Most presumptions are “rebuttable”, which means that the person against whom the presumption applies may present evidence to the contrary, which then has the effect of nullifying the presumption. This then deprives the person that tried to use the presumption with the advantage of the “free” evidence and makes him present evidence to support the fact which might have been proven by the presumption.
Buying back. When a vendor later buys the property back. A right of redemption gives the vendor the right to buy back the property. In some jurisdictions where a mortgage transfers title to the lender until the mortgage is paid off, the “buying back” of the property is known as redemption.
An informer; a person who has supplied the facts required for a criminal prosecution or a civil suit. In criminal prosecutions in some states, this would be indicated by the use of the expression ex. rel. as in The State of California ex. rel. Robert Smith v. George Doe.
A right to future enjoyment or ownership of real property. The “left-over” after property has been conveyed first to another party. A remainder interest is what if left-over after a life estate has run its course. Contrary to a reversion, a remainder does not go to the grantor or his (or her) heirs.
Abbreviation for “reciprocal enforcement of maintenance orders” and the name of the international system of recognition, registration and enforcement of child and spousal support orders between countries which have agreed, between themselves, to enforce each other’s maintenance orders. Originally created by England, the international REMO system now spreads over many countries.
This is the consideration paid by a tenant to a landlord in exchange for the exclusive use and enjoyment of land, a building or a part of a building. Under normal circumstances, the rent is paid in money and at regular intervals, such as the first of every month. The word has also come to be used as a verb as in to “rent an apartment”, although the proper legal term would be to “lease an apartment.”
A legal action taken to reclaim goods which have been distrained.
To abrogate or cancel a contract putting the parties in the same position they would have been in had there been no contract. Rescission can occur in one of two ways: either a contract can be set aside (rescinded) because of some defect in its formation (such as misrepresentation, duress or undue influence) or it can be set aside by agreement by the parties, for example if they reach a new agreement.
Latin for “things done.” A peculiar rule, used mostly in criminal cases, which allows hearsay if the statement is made during the excitement of the litigated event. For example, the words “stick ’em up!” used during an armed robbery would be admissible in evidence under the res gestae rule. So, too, would spontaneous statements made by the defendant during or right after the crime. Some laws even allow res gestae statements to be introduced in evidence in special kinds of prosecutions. For example, in child sexual abuse cases, the statement made by a child to another person may be allowed as evidence even though, technically, it offends the rule against hearsay. This is to recognize the trauma of having a child testify in open court on the subject of her or his abuse. Res gestae evidence usually requires a voir dire hearing before it is admissible unless the defense allows it to be put on the trial record unchallenged.
Res ipsa loquitur
A word used in tort to refer to situations where negligence is presumed on the defendant since the object causing injury was in his or her control. This is a presumption which can be rebutted by showing that the event was an inevitable accident and had nothing to do with the defendant’s responsibility of control or supervision. An example of res ipsa loquitur would be getting hit by a rock which flies off a passing dump truck. The event itself imputes negligence (res ipsa loquitur) and can only be defeated if the defendant can show that the event was a total and inevitable accident.
Latin: A matter which has already been conclusively decided by a court.
The party that “responds to” a claim filed in court against them by a plaintiff. The more common term is defendant. The word is also used to refer to the party who wins at the first court level but who must then respond to an appeal launched by the party that lost the case at the first court level (upon appeal, this latter person is called the appelant).
Restitutio in integrum
Latin for restitution to the original position. In contract law, upon breach of contract, the injured party may ask the court to reverse the contract and revert the parties to their respective positions before the contract was accepted. But if the court finds that restitutio in integrum is not possible because of actions or events occurring since the date of acceptance, then the court may order that damages be paid instead.
Under ancient English common law, when a party enforced a court judgement and then that judgement was overturned on appeal, the appellant could ask the appeal court for “restitution”, or financial compensation placing that appellant in the same position as if the original legal decision had not been enforced. A new strain of common law has also developed called “restitution”, closely associated with unjust enrichment, whereby a person is deprived of something of value belonging to them, can ask a court to order “restitution”. The best example is asking a court to reverse or correct a payment made in error.
A trust that is presumed by the court from certain situations. Similar to a constructive trust but for resulting trusts, the court presumes an intention to create a trust; the law assumes that the property is not held by the right person and that the possessor is only holding the property “in trust” for the rightful owner. In constructive trusts, the courts don’t even bother with presuming an intention; they simply impose a trust from the facts.
A contract between a lawyer and his (or her) client, wherein the lawyer agrees to represent and provide legal advice to the client, in exchange for money. The signed retainer begins the client-lawyer relationship from which flow many responsibilities and duties, primarily on the lawyer, including to provide accurate legal advice, to monitor limitation dates and to not allow any conflict of interest with the relationship with the client.
A future interest left in a transferror or his (or her) heirs. A reservation in a real property conveyance that the property reverts back to the original owner upon the occurence of a certain event. For example, Jim gives Bob a bulding using the words “to Bob for life”. Upon the death of Bob, the property reverts back to Jim or to Jim’s heirs. Differs from a remainder in that a remainder takes effect by an act of the parties involved. A reversion takes effect by operation of the law. Nor is a reversion a “left-over” as is a remainder. Rather, it reverts the entire property.
Right of first refusal
A right given to a person to be the first person allowed to purchase a certain object if it is ever offered for sale. The owner of this right is the first to be offered the designated object if it is ever to be offered for sale.
Special rights of people who own land that runs into a river bank (a “riparian owner” is a person who owns land that runs into a river). While not an ownership right, riparian rights include the right of access to, and use of the water for domestic purposes (bathing, cleaning and navigating). The extent of these rights varies from country to country and may include the right to build a wharf outwards to a navigable depth or to take emergency measures to prevent flooding.
Rule against perpetuities
A common law rule that prevents suspending the transfer of property for more then 21 years or a lifetime plus 21 years. For example, if a will proposes the transfer of an estate to some future date, which is uncertain, for either more than 21 years after the death of the testator or for the life of a person identified in the will and 21 years, the transfer is void. Statute law exists in many jurisdictions which supersedes the common law rule. For more information, see the WWLIA article on the “Rule Against Perpetuities.”
This is a very unusual word with two contradictory meanings. To “sanction” can mean to ratify or to approve but it can also mean to punish. The “sanction” of a crime refers to the actual punishment, usually expressed as a fine or jail term.
A special criminal law option available in Medieval times to persons who had just committed a crime, allowing them to seek refuge in a church or monastery. There, they could be exempted from the normal prosecution which, in those days, was quite severe (see, for example, The Law’s Hall of Horrors). But the ordeal, even within sanctuary, was no piece of cake. The fugitive had to remain within the walls of the sanctuary, abandon his or her oath to the king, followed which they had a short period of time to leave the country. They were considered to be “dead”, so much so that their land was forfeited to the King and their wife considered to be a widow. If they refused to renounce their oath, they could be starved out of the sanctuary. Henry VIII of England even took to branding them with a hot iron before they left the country just in case they tried to return; they could then be quickly spotted and arrested. Abolished from the common law in 1624 and, in France, at the time of the Revolution, the principle of sanctuary continues today, in somewhat altered form, as diplomatic asylum under international law.
Latin for knowledge. In legal situations, the word is usually used to refer to “guilty knowledge”. For example, owners of vicious dogs may be liable for injuries caused by these dogs if they can prove the owner’s “scienter” (i.e. that the owner was aware, before the attack, of the dog’s vicious character).
A court order (i.e. signed by a judge) that gives a police the permission to enter private property and to search for evidence of the commission of a crime, for the proceeds of crime or property that the police suspect may be used to commit a crime. These court orders are obtained on the basis of a sworn statement by the requesting law enforcement officer and will precisely describe the place to be searched and, in some cases, the exact property being sought.
The legal possession of property. In law, the term refers more specifically to the possession of land by a freeholder. For example, a owner of a building has seisin, but a tenant does not, because the tenant, although enjoying possession, does not have the legal title in the building.
The punishment given to a person who has been convicted (i.e. found to be guilty) of a crime. It may be time in jail, community service or a period of probation.
The taking of someone’s property, voluntarily (by deposit) or involuntarily (by seizure), by court officers or into the possession of a third party, awaiting the outcome of a trial in which ownership of that property is at issue.
The land which suffers or has the burden of an easement. The beneficiary of the easement is called a dominant tenement.
From Roman law, referring to rights of use over the property of another; a burden on a piece of land causing the owner to suffer access by another. An easement is type of servitude as is a profit a prendre.
The person who actually creates a trust by donating property to be managed and administered by a trustee but from which all profits would go to a beneficiary. The law books of some countries refer to this person as a “donor.”
A term used in human rights legislation and referring primarily to harassment in employment situations, related to sex or gender, which detrimentally affects the working environment. The most overt variation of sexual harassment is the quid pro quo offer of work-favor in exchange for sexual favor.
Penetration of a man’s penis into a woman’s vagina.
A portion of a company bought by a transfer of cash in exchange for a certificate, the certificate constituting proof of share ownership. Persons owning shares in a company are called “shareholders”. There are two basic kinds of shares: common and preferred. A shareholder is not liable for the debts or other obligations of the company except to the extent of any commitment made to buy shares. The two other benefits of shares include a right to participate in profits (through dividends) and the right to share the residue of assets of the company, once liabilities have been paid off, if it is ever dissolved.
A contract between the shareholders of the company and the company itself, in which certain things, usually the purview of the board of directors, are detailed. For example, a shareholder might be allowed to manage the company, instead of a board of directors. The shareholder agreement will also, typically, control inflows to the company (purchase of shares), how profits are to be distributed, dispute resolution and what to do if a shareholder dies.
A person who invests in a company or partnership but does not take part in administering or directing the organization; he or she just shares in the profits or losses.
Adjourned without giving any future date of meeting or hearing. A court that adjourns sine die essentially dismisses the case by saying that it never wants to hear the case again! A meeting which adjourns sine die has simply not set a date for it’s next meeting.
Verbal or spoken defamation.
Slander of title
Intentionally casting aspersion on someone’s property including real property, a business or goods (the latter might also be called “slander of goods”). A form of jactitation. For example, stating that a house is haunted or alleging that a certain product infringes a patent or copyright.
When a person (called “master”) has absolute power over another (called “slave”) including life and liberty. The slave has no freedom of action except within limits set by the master. The slave is considered to be the property of the master and can be sold, given away or killed. All the fruits of the slave’s labor belongs to the master (see, for example, the extract from The 1740 South Carolina Slave Code in the History of the Law). Slavery was once very prevalent in the world but is now illegal in most countries.
A regular court but which has simplified rules of procedure and process to deal with claims of a lesser value. Many jurisdictions have established small claims courts which, because of their structures and reliance on deformalized proceedings, allow for expedited hearings and where representation by lawyer is not required or encouraged. Some typical distinctive characteristics of small claims courts include the ability to serve by regular mail and to seize both a court and an adversary at far less cost than in ordinary courts.
A term of the feudal system which referred to the tenure which was exchanged for certain goods or services which were not military in nature. Socage is often described as “free and common socage” although the “free and common” qualification is now of a purely historical significance.
Synonymous with buggery and referring to “unnatural” sex acts, including copulation, either between two persons of the same sex or between a person and an animal (the latter act is known as “bestiality”). Most countries outlaw bestiality but homosexual activity is gradually being decriminalized.
A lawyer that restricts his or her practice to the giving of legal advice and does not normally litigate in the court room. In England and some other Commonwealth jurisdictions, a legal distinction is made between solicitors and barristers, the former with exclusive privileges of giving oral or written legal advice, and the latter with exclusive privileges of preparing and conducting litigation in the courts. In other words, solicitors don’t appear in court on a client’s behalf and barristers don’t give legal advice to clients. In England, barristers and solicitors work as a team: the solicitor would typically make the first contact with a client and if the issue cannot be resolved and proceeds to trial, the solicitor would transfer the case to a barrister for the duration of the litigation.
Has two meanings. The first one is a technical word for the monarch (king or queen) of a particular country as in “the Sovereign of England is Queen Elizabeth.” The other meaning of the word is to describe the supreme legislative powers of a state: that they are totally independent and free from any outside political control or authority over their decisions.
A child custody decision which means that legal custody goes back and forth between parents like a ping-pong ball, as they, in turn, take care of the child. They are very rare because they work against consistent upbringing decisions for the child. Also known as “divided custody” although the latter concept is mostly used to describe split custody over greater periods of time such as alternate years with each parent.
Standing committeeA term of parliamentary law which refers to those committees which have a continued existence; that are not related to the accomplishment of a specific, once-only task as are ad hoc or special committees. Standing committees generally exist as long as the organization to which it reports. Budget and finance or nomination committees are typical standing committees of a larger organization.
A basic principle of the law whereby once a decision (a precedent) on a certain set of facts has been made, the courts will apply that decision in cases which subsequently come before it embodying the same set of facts. A precedent which is binding; must be followed.
A term of international law: those groups of people which have acquired international recognition as an independent country and which have four characteristics; permanent and large population with, generally, a common language; a defined and distinct territory; a sovereign government with effective control; and a capacity to enter into relations with other states (i.e. recognized by other states). The Republic of Ireland, France and China are examples of states. States are the primary subjects of international law. The United Nations is comprised of all the states of the world. Some large states have subdivided into smaller units each having limited legislative powers normally restricted to subjects which are more properly regulated at a local, rather than a national level. Thus, the states of the USA are not really “states” under international law. It is common for the general public and English dictionaries to use the word “nations” to refer to what international law calls “states.”
The written laws approved by legislatures, parliaments or houses of assembly (i.e., politicians). Also known as “legislation”. The written laws of the Canadian Province of Newfoundland, for example, are in a multi-volume set of books called the Statutes of Newfoundland.
The common law definition of rape has not proven adequate to reflect modern values. It is limited to sex without consent and with a woman, and only where the victim is not the wife of the rapist. Many states have enacted laws which include under the charge of rape, sex with a minor even if done with the minor’s consent, sex without consent regardless of whether the victim is male or female, and sex without consent regardless of the matrimonial bond between victim and rapist.
A trust created by the effect of a statute. They are usually temporary in nature and serve the purpose of bridging ownership of property to benefit a certain class of individuals which the statute is designed to protect. Some examples are the temporary trusts that the law of some states impose on the executor of an estate, the holding and administration of tax or other pay deductions (including vacation pay) by employers, the trust accounts of lawyers and the statutory trust on money paid for a construction project on behalf of any person who might have a construction lien on the property.
Latin: the offspring of a person; his or her descendants. For example, inheriting per stirpes means having a right to a deceased’s estate because you happen to be a descendant of the deceased.
Tort liability which is set upon the defendant without need to prove intent, negligence or fault; as long as you can prove that it was the defendant’s object that caused the damage.
The process whereby, under the feudal system of tenure, a person receiving a grant of land from a lord, could himself become a lord by subdividing and subletting that land to others.
A matter that is still under consideration by a court. You will hear of politicians declining to speak on a certain subject because the subject matter is “sub judice”.
Subordination To be subject to the orders or direction of another; of lower rank.
Latin: an order of a court which requires a person to be present at a certain time and place or suffer a penalty (subpoena means, literally, “under penalty”). This is the traditional tool used by lawyers to ensure that witnesses present themselves at a given place, date and time to make themselves available to testify (see also duces tecum).
When you pay off someone’s debt and then try to get the money from the debtor yourself. (Compare with “novation”.)
The real property that supports or endures an easement. The real property benefitting from an easement is called the dominant tenement.
If a party appears to be avoiding service of court documents, a request may be made with the court to, instead of personal service (i.e. giving the document directly to the person), that the document be published in a local newspaper, served on a person believed to frequent the person or mailed to his (or her) last known address.
A person who takes over the rights of another.
A person who possesses full civil rights and is not under any legal incapacity such as being bankrupt, of minor age or mental incapacity. Most adults are sui juris.
This is one of the initial documents issued in a civil suit; giving the defendant notice of the claim and an opportunity to defend it. The summons also gives the court which issues it the authority to dispose of the matter. In a criminal law, this is the document used by the police to compel an accused to attend court to answer the charges. It does not involve the arrest of the accused and is used where the police, either by the relatively less serious nature of the crime or because of the standing of the accused in the community, do not believe that arrest is necessary to ensure the attendance of the accused at court.
SuretyThe person who has pledged him or herself to pay back money or perform a certain action if the principal to a contract fails, as collateral, and as part of the original contract. Technically, where a person provides collateral after or before the original contract is signed, and as a separate contract, the person is called a “guarantor” and not a “surety.”
A civil law term for a reciprocal or bilateral contract: one in which both parties provide consideration. A contract of sale is a classic example, where one party provides money and the other, goods or services. A gift is not a synallagmatic contract.
To interfere improperly or in violation of the law such as to tamper with a document. The term “jury tampering” means to illegally disrupt the independence of a jury member with a view to influencing that juror otherwise than by the production of evidence in open court.
Tenancy by the entireties
A form of co-ownership in English law where, when a husband transferred land to his wife, the property could not be sold unless both spouses agreed nor could it be severed except by ending the marriage.
A person to whom a landlord grants temporary and exclusive use of land or a part of a building, usually in exchange for rent. The contract for this type of legal arrangement is called a lease. The word “tenant” originated under the feudal system, referring to land “owners” who held their land on tenure granted by a lord.
Tenants in common
Similar to joints tenants. All tenants in common share equal property rights except that, upon the death of a tenant in common, that share does not go to the surviving tenants but is transferred to the estate of the deceased tenant. Unity of possession but distinct titles.
An unconditional offer of a party to a contract to perform their part of the bargain. For example, if the contract is a loan contract, a tender would be an act of the debtor where he produces the amount owing and offers to the creditor. In real property law, when a party suspects that the other may be preparing to renege, he or she can write a tender in which they unequivocally re-assert their intention to respect the contract and tender their end of the bargain; either by paying the purchase or delivering the title.
Property that could be subject to tenure under English land law; usually land, buildings or apartments. The word is rarely used nowadays except to refer to dominant or servient tenements when qualifying easements.
A right of holding or occupying land or a position for a certain amount of time. The term was first used in the English feudal land system, whereby all land belonged to the king but was lent out to lords for a certain period of time; the lord never owning, but having tenure in the land. Used in modern law mostly to refer to a position a person occupies such as in the expression “a judge holds tenure for life and on good behavior.”
A trust which is to take effect only upon the death of the settlor and is commonly found as part of a will. Trusts which take effect during the life of the settlor are called inter vivos trusts.
A person who dies with a valid will.
The verbal presentation of a witness in a judicial proceeding.
Torrens land registration system
A land registration system invented by Robert Torrens and in which the government is the keeper of the master record of all land and their owners. In the Torrens system, a land title certificate suffices to show full, valid and indefeasible title. Used in Australia and several Canadian provinces.
Derived from the Latin word tortus which meant wrong. In French, “tort” means a wrong”. Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury. Every person is expected to conduct themselves without injuring others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (“damages”) so that, ultimately, they will suffer the pain cause by their action. Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct.
Name given to a person or persons who have committed a tort.
A legal proceeding taken under the law of equity where the plaintiff attempts to reclaim specific property, through the court, whether the property is still in the first acquirer’s hands or it has passed onto others, and even if the property has been converted (related common law terms: conversion, trover and detinue). This is a procedure frequently used by a trust beneficiary to recover misappropriated trust property.
A person who receives property being transferred (the person from whom the property is moving is the transferor).
A person from whom property moves. Property is transferred from the transferor to th transferor. I sell you my house and in transferring title to you, I am the transferor and you, the transferee.
A formal agreement between two states signed by official representatives of each state. A treaty may be “law-making” in that it is the declared intention of the signatories to make or amend their internal laws to give effect to the treaty. The Berne Convention is an example of such as treaty. Other treaties are just contracts between the signatories to conduct themselves in a certain way or to do a certain thing. These latter type of treaties are usually private to two or a limited number of states and may be binding only through the International Court of Justice.
Unlawful interference with another’s person, property or rights. Theoretically, all torts are trespasses.
An old English and common law legal proceeding against a person who had found someone else’s property and has converted that property to their own purposes. The action of trover did not ask for the return of the property but for damages in an amount equal to the replacement value of the property. English law replaced the action of trover with that of conversion in 1852.
Property given by a person called the donor or settlor, to a trustee, for the benefit of another person (the beneficiary or donee). The trustee manages and administers the property, actual ownership is shared between the trustee and the beneficiary and all the profits go to the beneficiary. The word “fiduciary” can be used to describe the responsibilities of the trustee towards the beneficiary. A will is a form of trust but trusts can be formed during the lifetime of the settlor in which case it is called an inter vivos or living trust.
The person who holds property rights for the benefit of another through the legal mechanism of the trust. A trustee usually has full management and administration rights over the property but these rights must always be exercised to the full advantage of the beneficiary. All profits from the property go to the beneficiary although the trustee is entitled to reimbursement for administrative costs. There is no legal impediment for a trustee to also be a beneficiary of the same property.
Trustee de son tort
A trustee “of his own wrong”; a person who is not a regularly appointed trustee but because of his or her intermeddling with the trust and the exercise of some control over the trust property, can be held by a court as “constructive” trustee which entails liability for losses to the trust.
Without authority. An act which is beyond the powers or authority of the person or organization which took it.
A legal procedure whereby you can seek reimbursement from another who benefitted from your action or property without legal justification. There are said to be three conditions which must be met before you can get a court to force reimbursement based on “unjust enrichment”: an actual enrichment or benefit to the defendant, a corresponding deprivation to the plaintiff, and the absence of a legal reason for the defendant’s enrichment. For example (and only theoretically as many countries have laws which have modified equity law in some situations), if you found somebody else’s cash and spent it, you might be sued for reimbursement under unjust enrichment. The legal theory behind unjust enrichment is the constructive trust, which the court imposes upon the circumstances to hold the person unjustly enriched as the trustee for the person who should properly get the property back, held to be the beneficiary of the constructive trust.
From ancient Roman law (and now a part of many civil law systems), “usufruct” means the rights to the product of another’s property. For example, a farmer may give a right of “usufruct”of his land to a neighbor, thus enabling that neighbor to sow and reap the harvest of that land.
Excessive or illegal interest rate. Most countries now prohibit interest rates above a certain level; and rates which exceed these levels are called “usury”.
A tramp or homeless person.
The seller; the person selling.
This has the same meaning as in everyday English except that in a legal context it usually refers specifically to the location of a judicial hearing. For example, if a criminal case has a very high media profile in a particular city, the “venue” may change to another city to ensure objective witnesses (i.e. that would not have been spoiled by media speculation on the crime).
Any thing that is designed to transport persons or objects. A bicycle has been held to be a vehicle.
Verba fortius accipiuntur contra proferentem
Latin: a principle of construction whereby if words of a contract are ambiguous, of two equally possible meanings, they should be interpreted against the author of the words and not against the other party.
The decision of a jury. In criminal cases, this is usually expressed as “guilty” or “not guilty”.In a civil case, the verdict would be a finding for the plaintiff or for the defendant.
Latin for “to wit” or “that is to say.” “Viz.”, which is the abbreviation of videlicet, is much more commonly used. It is often found in legal documents to advise that what follows provides more detail about a preceding general statement. For example: “The defendant committed adultery; viz., on April 15th, at approximately 10:30 pm, he had sexual intercourse with Ms Jane Doe.”
An abbreviation of the Latin word videlicet. Short for “namely” or “that is to say.”
When a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong. This is often the case with employers who are held vicariously liable for the damages caused by their employees.
Latin: man or husband. Vir et uxor censentur in lege una persona is an old (and long abandoned in most countries) legal principle meaning that man and wife are considered to be one person in law.
Void or void ab initio
Not legally binding. A document that is void is useless and worthless; as if it did not exist.For example, in many countries, contracts for immoral purposes are said to be “void”:unenforceable and not recognized by the courts. A good example is a contract to commit a serious crime such as murder.
The law distinguishes between contracts which are void and those which are voidable. Some contracts have such a latent defect that they are said to be void (see definition of “void” above). Other have more minor defects to them and are voidable at the option of the party victimized by the defect. For example, contracts signed by a person when they are totally drunk are voidable by that person upon recovering sobriety.
A mini-hearing held during a trial on the admissibility of contested evidence. For example, a defendant may object to a plaintiff’s witness. The court would suspend the trial, immediately preside over a hearing on the standing of the proposed witness, and then resume the trial with or without the witness, or with any restrictions placed on the testimony by the judge as a result of the voir dire ruling. In a jury trial, the jury would be excused during the voir dire.
Volenti non fit injuria
Voluntary assumption of risk. A defence in tort that means where a person engages in an event accepting and aware of the risks inherent in that event, then they can not later complain of, or seek compensation for an injury suffered during the event. This is used most often to defend against tort actions as a result of a sports injury.
Young persons who are treated differently than adult criminals and are tried in special youth courts.